Davis v. State

• Decision Date: 08 May 2002
• Docket Number: No. CA CR 01-503.,CA CR 01-503.
• Citation: 74 S.W.3d 671,77 Ark. App. 310
• Parties: Lee Roy DAVIS v. STATE of Arkansas.
• Court: Arkansas Court of Appeals

74 S.W.3d 671

77 Ark. App. 310

Lee Roy DAVIS v. STATE of Arkansas.

No. CA CR 01-503.

Court of Appeals of Arkansas, Divisions III, IV.

May 8, 2002.

Katherine S. Streett, El Dorado, for appellant.

Mark Pryor, Att'y Gen., by: Lauren Elizabeth Heil, Ass't Att'y Gen., Little Rock, for appellee.

ANDREE LAYTON ROAF, Judge.

Lee Roy Davis was charged with possession of a controlled substance with intent to deliver and possession of drug paraphernalia. After the trial court denied his motion to suppress the cocaine and crack pipe that were found in a pat-down search of his person by police. Davis entered a conditional guilty plea, reserving his right to appeal the denial of the motion to suppress. On appeal, Davis argues that the trial court erred in denying his motion to suppress because the detention, questioning, and search of his person violated the Fourth and Fourteenth Amendments and Arkansas Rules of Criminal Procedure 3.1 and Rule 3.4. We agree, and we reverse and remand.

Lieutenant Billy White and Sergeant Brandon Ivy were on bicycle patrol in a "troubled" area of El Dorado. White observed five men in the yard of a vacant house, two of whom, Davis and another man, were standing together. When the two men observed the officers, they turned and walked away quickly. Ivy stopped the men and requested that Davis state his name and date of birth. Ivy relayed to the Arkansas Crime Information Center (ACIC) the name and date of birth that Davis gave to him. ACIC returned no record for such name and birth date. When Ivy requested consent to search, Davis responded with an inquiry into the basis of Ivy's probable cause. Davis then told Ivy that he would "give you my sh* *" and reached into his pocket. Ivy told him that he would get it and then pulled a crack pipe from Davis's pocket.

Officer White testified that the southeast area of El Dorado, near Detroit and Roosevelt Streets, was an area known for drug activity. He testified that he observed five persons in the front yard of a vacant house near this intersection, that two of them were standing side by side next to the house, and that it appeared as if they were exchanging something. Officer White admitted that he "did not see them exchange anything. They just gave the appearance as though they were exchanging something. One of them actually had his hands out as though he was receiving or giving something to the other. I didn't see anything actually being handed back and forth." He further testified that when these two individuals saw the officers, they "hurriedly walk[ed] away."

Sergeant Brandon Ivy testified that he observed Davis and another person immediately separate. He stated that he intended to stop and detain Davis in order to identify him. He told Davis that he had detained him because he had been seen making a hand-to-hand transaction. Upon request for his name, Davis incorrectly told Ivy that his name was John Davis and gave an incorrect birth date. Ivy testified that ACIC returned no record of such a person.

In reviewing the denial of a motion to suppress evidence, we make an independent examination based upon the totality of the circumstances and reverse only if the decision is clearly against the preponderance of the evidence. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997); State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978); McDaniel v. State, 65 Ark. App. 41, 985 S.W.2d 320 (1999).

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain for no more than a few minutes any person whom he reasonably suspects is committing, has committed, or is about to commit a felony or a misdemeanor involving danger of forcible injury to persons or appropriation of or damage to property. See Ark. R.Crim. P. 3.1. The justification for the investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity. Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982). Reasonable suspicion is defined as suspicion based upon facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion. Ark. R. Civ. P. 2.1; Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998).

Additionally, Ark.Code Ann. § 16-81-203 (Repl.1999) sets forth a list of factors to be considered in determining whether an officer has grounds for reasonable suspicion. Among these factors are the gait and manner of the suspect; whether the suspect is carrying anything; time of the day or night the suspect is observed; the particular streets and areas involved; any information received from third persons, whether they are known or unknown; whether the suspect is consorting with others whose conduct is "reasonably suspect"; the suspect's proximity to known criminal conduct; incidence of crime in the immediate neighborhood; and the apparent effort of the suspect to avoid identification or confrontation by the police. Ark.Code Ann. § 16-81-203.

This court recently considered a case involving the propriety of an initial detention in Jefferson v. State, 76 Ark.App. 300, 64 S.W.3d 791 (2002), and reversed the conviction based on the illegality of the initial detention. In Jefferson, officers stopped the appellant after observing him walking from between two mobile homes and crossing the street; the officers became suspicious of him because of the time of night, and turned their patrol car headlights on him. When Jefferson saw the headlights, he quickly changed direction and went back to the other side of the street. The officers then ordered Jefferson to stop. As Jefferson approached the officers, he pulled something out of his pocket and dropped it on the ground. The officers later retrieved the object, which contained cocaine. This court found that the initial stop was improper as the officers were not investigating a particular crime as required by Ark. R.Crim. P. 2.2.

The Arkansas Supreme Court likewise reversed a denial of a motion to suppress in another case involving facts similar to the instant case. In Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), an officer was patrolling a known drug-trafficking area when he observed the defendant standing on the street corner. Given the late hour (almost 2 a.m.), the fact that the area was known for drug activity, and that the officer had personally made numerous arrests in that area, he suspected Stewart may have been dealing narcotics. Stewart v. State, supra. The officer approached Stewart, asked her what she was doing, and asked her to remove her hands from her jacket pockets. When Stewart kept trying to place her right hand back into her jacket pocket, the officer performed a pat-down search for weapons and felt a bulge in her pocket. The officer removed the bulge, which turned out to be $135 and a matchbox containing crack cocaine. The supreme court held that the initial encounter with Stewart was impermissible under Ark. R.Crim. P. 2.2 and 3.1 because the officer lacked reasonable suspicion to stop Stewart.

In the case at bar, the officers simply saw two men standing side by side in an alleged high-crime area. The officers did not observe any criminal activity, nor did they observe a suspicious transaction. The officers did not have reasonable suspicion as defined by Rule 2.1, and they were not investigating a particular crime as required by Rule 2.2. Consequently, they failed to comply with Rule 3.1 because they lacked reasonable suspicion to stop and detain Davis.

The officers further attempted to justify the stop by showing the existence of other factors that arose afterwards, see Arkansas Code Annotated. § 16-81-203, supra, i.e. Davis's attempt to conceal his identity, as well as his "fidgety" behavior when questioned. However, this evidence is not relevant to the determination of whether the initial stop was reasonable because it was not known at the time the officers decided that a stop was warranted. See Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (holding that denial of motions to suppress evidence obtained in warrantless searches should be reviewed de novo, including a determination of the historical facts leading up to the stop or search) (emphasis added). The only factors known prior to the stop were the time of day, 2:30 p.m., and the incidence of crime in the neighborhood. Even if Davis's effort to avoid the police by turning away when they approached is considered, the information known to the officers at the time they decided to detain Davis is insufficient to supply the requisite reasonable suspicion to stop.

Reversed and remanded.

ROBBINS and BAKER, JJ., agree.

BIRD and NEAL JJ., concur.

PITTMAN, J., dissents.

SAM BIRD, Judge, concurring.

I concur in the reversal of this case, but I do not agree with the basis of the majority's decision. Unlike the majority, I believe that reasonable suspicion existed to detain Davis; but I would reverse and remand with instructions to the trial court to grant Davis's suppression motion because the search of his outer clothing (commonly referred to as a "frisk") violated Rule 3.4.

In Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), the court reversed a trial court's denial of a motion to suppress when Stewart was detained by officers because she was standing on a street corner in a known drug area. On appeal, the supreme court stated that the officer's "only justification for stopping Stewart was simply that she was standing in the wrong place at the wrong time." Id. at 146, 964 S.W.2d at 797.

In Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980), the court held that Rule 3.1 did not permit officers to stop and detain airline passengers who quickened their pace and continued to look back when followed by the officers. In Jefferson v. State, 76...