Dowty v. State

• Decision Date: 23 June 2005
• Docket Number: No. CR 04-1328.,CR 04-1328.
• Citation: 210 S.W.3d 850
• Parties: Alvis E. DOWTY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

210 S.W.3d 850 Alvis E. DOWTY, Appellant,
v.
STATE of Arkansas, Appellee. No. CR 04-1328. Supreme Court of Arkansas. June 23, 2005.

[210 S.W.3d 852]

Miller Law Firm, by: Leslie Borgognoni, Little Rock, and Randel Miller, Jonesboro, for appellant.

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

JIM HANNAH, Chief Justice.

Appellant Alvis E. Dowty was convicted in Craighead County Circuit Court of one count of possession of methamphetamine with intent to deliver, for which he was sentenced to a term of fifteen years' imprisonment and a fine in the amount of $10,000; one count of possession of drug paraphernalia with intent to use, for which he was sentenced to a term of three years' imprisonment and a fine of $2500; and one count of possession of a controlled substance, for which he was fined $100. The circuit court ordered that the sentences run concurrently. On appeal, Dowty argues that the circuit court erred in denying his motion to suppress evidence obtained as a result of a warrantless search in connection with a dog sniff. We find no error and, accordingly, we affirm. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(5).

The testimony at Dowty's suppression hearing reveals the following facts. Wes Baxter, a deputy sheriff with the Craighead County Sheriff's Department testified that both he and the Drug Task Force had received information that Dowty and two other individuals, April Thorn and Sherry Buckelew, were involved in the manufacture and sale of methamphetamine. Baxter testified that he had received information that Dowty manufactured methamphetamine at his residence in Tennessee and brought large quantities to the Jonesboro area, where he, Thorn, and Buckelew sold it. Baxter said that the three were allegedly selling some of the methamphetamine at a trailer on County Road 318. In addition, Baxter stated that he had information that Dowty was driving

210 S.W.3d 853

a black Suburban "and that there may be rental vehicles involved as well."

On March 16, 2004, at around 2:15 p.m., Baxter, who was not on duty, was driving near County Road 318, when he observed Dowty and an individual Baxter believed to be April Thorn, driving a black Suburban and a black Grand Am, respectively. Baxter testified that it is common for those involved in drug trafficking to use rental cars for transporting drugs to avoid having their personal vehicles seized during a drug arrest. He further testified that at the time he observed the vehicles, he noticed that the Grand Am bore a green "Enterprise" sticker.

After observing Dowty and Thorn, Baxter contacted Jerry Roth, a fellow deputy sheriff and member of the Drug Task Force. Baxter told Roth what he had observed and continued to follow the couple. Baxter observed the two pull their cars beside each other in the parking lot of an Outback Steakhouse, talk for about five minutes, and leave the parking lot. The two then drove north on Southwest Drive, with Baxter following. Shortly thereafter, Roth and another officer, Investigator Lane, began to follow Dowty and Thorn, and Baxter discontinued his surveillance. Roth testified that prior to March 16, 2004, he had received information that Dowty was involved in trafficking and distributing large amounts of methamphetamine in the area. Further, Roth stated that the Drug Task Force had "information . . . that Mr. Dowty was bringing large quantities of crystal into Craighead County, staying at some of the local motels such as the Park Place Inn and also staying at Sherry Buckelew's residence out on 318."

Roth testified that he saw the couple park their cars beside each other in the parking lot of a Western Sizzlin and walk into the restaurant. At that point, Roth contacted Investigator John McGee and asked him to go inside the restaurant to observe Dowty and Thorn. Roth also contacted Brett Duncan, a canine officer with the sheriff's department, and asked Duncan to bring his drug-sniffing dog Raid to their location.

Duncan testified that when he arrived at the Western Sizzlin, he walked Raid around the Suburban first, beginning with the passenger's side. Raid put his nose in the seam of the passenger door of the Suburban and began breathing hard; however, Raid did not alert on the vehicle. Immediately thereafter, Raid turned his attention to the Grand Am and alerted on the passenger's side of that vehicle. Duncan testified that he told Roth that Raid alerted on the Grand Am and "showed interest" in the Suburban. Duncan also stated that he did not complete the "sniff" of the Suburban because he believed that if Dowty and Thorn walked out of the restaurant and saw him there with Raid, the two might not return to their vehicles. Duncan took Raid back to the patrol car, and he and the other officers waited for the couple to emerge from the restaurant.

Dowty and Thorn walked out of the restaurant about five minutes after the dog sniff. Thorn opened the door of the Grand Am and sat inside while Dowty stood beside the car and talked to her. Roth and Lane approached the couple and identified themselves, followed by Duncan and McGee. Duncan informed Thorn that his dog had alerted on her vehicle and that he wanted to conduct a search. Duncan searched the Grand Am and discovered methamphetamine. Thorn was then placed under arrest.

After Thorn was arrested, Roth spoke to Dowty, advising him that Thorn had been arrested because drugs had been found in her car. Roth said that Dowty asked him, "What does this have to do with me?" Roth then asked Dowty if he had come to

210 S.W.3d 854

the restaurant with Thorn, and Dowty denied being there with her. Roth then told Dowty that police officers had observed the two at the Outback Steakhouse parking lot and followed them to the Western Sizzlin parking lot. After learning this, Dowty admitted that he had been following Thorn.

While Roth was speaking with Dowty, Duncan retrieved Raid to complete the sniff of the Suburban. Raid alerted on the front-passenger door. Officers conducted a search of Dowty's vehicle and found methamphetamine, a defaced handgun, digital scales, and other items of drug paraphernalia on the driver's side of the Suburban. As a result of the evidence recovered during the search, Dowty was arrested.

At the suppression hearing, Dowty argued that the canine sniff of his vehicle and the subsequent search of his vehicle by officers was an unreasonable search and seizure in violation of the Fourth Amendment and Article 2, § 15 of the Arkansas Constitution. He further argued that he was detained upon his initial contact with the officers, and that because nothing prior to that point gave rise to reasonable suspicion that he was engaged in illegal activity, the detention was unreasonable. Additionally, Dowty argued that even if the detention and second dog sniff were justified, the officers did not have probable cause for a warrantless search and, as such, prior to conducting a search, the officers should have presented the facts to a magistrate for a probable-cause determination.

The circuit court found that prior to Raid's alert on the Suburban, Dowty was not detained. Further, the circuit court found that under the Fourth Amendment, reasonable suspicion is not required prior to conducting a canine sniff of a vehicle. The circuit court also found that once the second canine sniff was completed, the officers were not required to obtain a search warrant to search Dowty's vehicle.

On appeal, Dowty argues that the circuit court erred in (1) finding that he was not detained and was free to leave under the Fourth Amendment, the Arkansas Constitution, and the Arkansas Rules of Criminal Procedure; and (2) finding that the two canine sniffs were not a search under Arkansas law and "that the conflicting sniff results were probable cause to conduct a warrantless search that resulted in contraband being discovered in yet a different enclosed area of the vehicle." In reviewing the trial court's denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004).

Dowty begins his argument by contending that under both the United States Constitution and the Arkansas Constitution, police officers had no legal basis for contact or reasonable suspicion to conduct the first dog sniff. In Sims, we held that a canine sniff of the exterior of a vehicle is not a Fourth Amendment search. 356 Ark. at 515, 157 S.W.3d at 536 (citing United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (concluding that a dog sniff is "sui generis")).¹ See also United States v. Friend, 50 F.3d

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548 (8th Cir.1995), vacated and remanded on other grounds, 517 U.S. 1152, 116 S.Ct. 1538, 134 L.Ed.2d 643 (1996) (stating that a dog sniff of a car parked on a public street or alley does not amount to a search under the Fourth Amendment); United States v. Ludwig, 10 F.3d 1523 (10th Cir.1993)(holding that random and suspicionless dog sniff of vehicles in motel parking lot was not a search subject to Fourth Amendment); Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir. 1982) (stating that dog sniffs of vehicles on public parking lot of school are not a search within the purview of the Fourth Amendment); State v. McMillin, 23 Kan. App.2d 100, 927 P.2d 949 (1996) (holding that the dog sniff of vehicle parked in public parking lot did not constitute a "search" under the Fourth Amendment); State v. Garcia, 195 Wis.2d 68, 535 N.W.2d 124 (1995) (holding that the dog sniff of exterior of car parked in motel parking lot is not a search under the Fourth Amendment because there is no legitimate expectation of privacy around air...