Cooper v. State, CR
| Decision Date | 23 January 1989 |
| Docket Number | No. CR,CR |
| Citation | 297 Ark. 478,763 S.W.2d 645 |
| Parties | Benny Aaron COOPER, Appellant, v. STATE of Arkansas, Appellee. 88-72. |
| Court | Arkansas Supreme Court |
James Marschewski, Fort Smith, for appellant.
Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Benny Cooper was charged with attempted capital murder, possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, possession of drug paraphernalia, and felon in possession of a firearm. Before trial, Cooper filed a motion to suppress evidence seized from his vehicle contending that his detention by the investigating officer was unlawful and that the warrantless search of the vehicle violated his fourth amendment rights. At a hearing on the motion, the trial court determined that the evidence was admissible. Cooper was subsequently convicted by a jury on all charges and sentenced as an habitual offender. Finding no error, we affirm.
At approximately 10:30 p.m. on April 7, 1987, Detective Clay Thomas of the Fort Smith Police Department noticed a 1969 Oldsmobile travelling northbound on Towson Avenue in Fort Smith bearing what appeared to be out-of-state handwritten paper car tags. Thomas could not determine the expiration date of the tags nor could he determine where they had been issued. Thomas further considered the presence of temporary tags suspect as the car was an older model vehicle. Thomas followed the car and at one point pulled along side the vehicle. The driver looked directly at Thomas and shortly thereafter made a sudden left-hand turn without giving a signal.
Thomas managed to intercept the Oldsmobile several streets later at which time he turned on his blue lights and spot light and flashed his headlights in an effort to stop the vehicle. The driver of the Oldsmobile crossed several streets and then parked in a dark area on a side street. Detective Thomas placed his unit behind the car and ordered the driver to exit the vehicle. The driver produced an Oklahoma ticket (unsafe vehicle) in lieu of a driver's license and identified himself as Benny Cooper.
Thomas testified that he recognized Cooper's name in connection with several recent arrest reports indicating that Cooper was a local drug dealer with prior convictions who was often armed. Thomas also suspected at this time that a bulge in Cooper's left hip pocket indicated the presence of a small handgun. Thomas returned to his vehicle to check for outstanding warrants and told Cooper to remain at the rear of the Oldsmobile. The warrant check was negative but another officer advised Thomas over the radio that Cooper was a known drug dealer, might be carrying drugs, and would be armed. At this time, Thomas noticed that Cooper had reentered his vehicle.
Thomas again ordered Cooper to exit the Oldsmobile. As he approached Cooper he talked with him for a moment and then asked Cooper if he was carrying a gun. Cooper replied in the negative and raised his jacket as proof. Thomas, still wary of the bulge in Cooper's left hip pocket, knew that Cooper had been arrested only two weeks earlier and had been carrying a .38 caliber handgun in his left hip pocket. As a matter of caution, Thomas asked Cooper to place his hands on the car so that he could conduct a limited protective search or "pat down" of Cooper's person.
Thomas testified that Cooper spun around and away from him, removed a gun from his left hip pocket, then pulled the trigger. The gun apparently malfunctioned. Thomas threw his flashlight at Cooper and ducked behind the Oldsmobile. He testified that Cooper then reached over the top of the vehicle and again tried to shoot him. Thomas drew his weapon, at which point Cooper either dropped his gun or threw it at Thomas and fled on foot. Cooper was apprehended by other officers about an hour later. During that time, Cooper's handgun was recovered and Thomas conducted a search of the Oldsmobile to check its contents since he considered it abandoned and knew it would be impounded.
In reviewing a trial judge's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling was clearly against the preponderance of the evidence. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).
The fourth amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." That protection extends to persons driving down the street. Generally, searches of such persons or their vehicles conducted without a warrant are considered unreasonable. However, it has been held that consistent with the fourth amendment the police may stop persons on the street or in their vehicles in the absence of either a warrant or probable cause under limited circumstances. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). One of those limited circumstances involves investigatory stops such as the one presented by the facts in the case before us.
There is no serious argument as to the validity of the initial stop by Detective Thomas. The presence of the paper car tags and the fact that it was impossible to verify the state of issuance or the expiration date of the tags, combined with the age of the vehicle and the obviously evasive actions of the driver, gave Thomas sufficient cause to stop the vehicle. Rule 3.1 of the Arkansas Rules of Criminal Procedure in relevant part provides:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
In determining whether the officer's suspicion was reasonable, A.R.Cr.P Rule 2.1 provides the following definition:
"Reasonable suspicion" means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.
Here, Detective Thomas clearly had specific, particularized, and articulable reasons warranting his stop of the Oldsmobile to determine whether, as provided in Rule 3.1, the vehicle had been stolen. See Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, ...
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