Erby v. State
| Decision Date | 12 April 2023 |
| Docket Number | CR-22-473 |
| Citation | 2023 Ark.App. 220 |
| Parties | WYNTON ERBY APPELLANT v. STATE OF ARKANSAS APPELLEE |
| Court | Arkansas Court of Appeals |
Appeal from the Garland County Circuit Court [No. 26CR-21-71] Honorable Ralph C. Ohm, Judge
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att'y Gen., by: Walker K. Hawkins, Ass't Att'y Gen., for appellee.
Appellant Wynton Erby entered a conditional plea of guilty to one count of possession of a firearm by certain persons, a Class D felony, in violation of Arkansas Code Annotated § 5-73-103(c)(2).[1] His conditional plea reserved his right to appeal from the circuit court's denial of his motion to suppress physical evidence seized during a traffic stop. On appeal, Erby contends that the officer who initiated the traffic stop of the vehicle he was a passenger in lacked probable cause, and all evidence seized during the subsequent search of the vehicle is fruit of the poisonous tree. We affirm.
On December 15, 2020, Trooper Zach Guest of the Arkansas State Police pulled over a white Chrysler 300 for alleged traffic violations. Trooper Guest testified that, while on patrol, he ran the tags of the vehicle, and the Arkansas Crime Information Center/National Crime Information Center (ACIC/NCIC) online insurance-verification database reported that the system was unable to verify insurance for the vehicle, and the car's insurance status came back as "unconfirmed." Trooper Guest proceeded to pull over the vehicle. Trooper Guest stated that while he spoke with the occupants, he could smell a strong odor of marijuana coming from the vehicle. Both occupants Erby and the driver, Breagan Butler, were asked for identification. Erby did not have an ID; he was asked to exit the vehicle and was patted down by Trooper Guest. A firearm-a Glock-was discovered between Erby's legs. Upon questioning, Erby admitted that he is a felon. He was then placed in custody. Evidence discovered during the traffic-violation investigation led the State to charge Erby with possession of a firearm by certain persons. On April 7, 2021, Erby filed a motion to suppress the evidence seized during the traffic stop, arguing that Trooper Guest lacked the requisite probable cause of a traffic violation being committed to have initiated the stop. Erby asserted that the ACIC/NCIC system returning an insurance status of "unconfirmed" was insufficient to provide probable cause. He additionally argued that the ACIC/NCIC database was not reasonably reliable to form the basis for probable cause. The circuit court held a hearing on the suppression motion on February 16, 2022, and subsequently denied Erby's motion. On April 6, Erby entered a conditional plea of guilty pursuant to Arkansas Rule of Criminal Procedure 24.3(b), reserving the right to appeal the denial of his suppression motion. The circuit court sentenced Erby to three years' incarceration in the Arkansas Department of Correction. Erby filed a timely notice of appeal and now argues that the circuit court erred by denying his motion to suppress.
On appeal, Erby argues that Trooper Guest lacked probable cause to initiate a traffic stop that was based on an "unconfirmed" insurance status in the ACIC/NCIC database.
A police officer may stop and detain a motorist when the officer has probable cause to believe that a traffic violation has occurred.[5] Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.[6] In assessing the existence of probable cause, our review is liberal rather than strict.[7] The relevant inquiry is whether the officer had probable cause to believe that the defendant was committing a traffic offense at the time of the initial stop. [8]Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation that the officer believed to have occurred.[9]
Arkansas Code Annotated section 27-22-104(a)(1)(b)[10] provides that it is unlawful for a person to operate a motor vehicle within this state unless the motor vehicle and the person's operation of the motor vehicle are each covered by an insurance policy issued by an insurance company authorized to do business in this state. Section 27-22-104(a)(2)(A)(ii) provides that there is a rebuttable presumption that the motor vehicle or its operation is uninsured if the online insurance-verification system fails to show current insurance coverage for the driver or the insured.
Erby's sole argument on appeal has already been addressed by our court. In Small v. State,[11]this court affirmed the denial of a motion to suppress when the officer initiated a traffic stop after he ran the defendant's tags and discovered that the defendant's insurance had been canceled. We expressly held that "the lack of insurance information in the database was sufficient to provide [the officer] with probable cause to believe that a traffic violation had occurred.[12] Likewise, in Cagle v. State,[13] pursuant to Small, the circuit court held that "the lack of insurance information in the database was sufficient to provide [the officer] with probable cause to believe that a traffic violation had occurred." On appeal, we held that "the circuit court's reliance on this fact to deny Cagle's motion to suppress is affirmed."
Erby attempts to distinguish his case from the above-cited precedent; however, we are unpersuaded. We find no merit in his contention that while a "canceled" status provides probable cause, a returned status of "unconfirmed" does "not rise to the level of probable cause." Arkansas Code Annotated section 27-22-104(a)(2)(A)(ii) states that a car or driver is presumed to be uninsured if the online-verification system "fails to show current insurance coverage." Despite Erby's argument, both "unconfirmed" and "canceled" fail to provide proof of current insurance coverage. Therefore, we find no merit to his argument and affirm the denial of his suppression motion.
Affirmed.
Cindy Grace Thyer, Judge, concurring. I believe Trooper Zach Guest violated Wynton Erby's constitutional right to be free from an unwarranted search and seizure when he stopped the vehicle in which Erby was a passenger without sufficient probable cause to believe a crime was being committed. The majority believes otherwise. However, because Erby has not challenged the circuit court's determination that the good-faith exception to the exclusionary rule applies, I must concur with the majority's conclusion that Erby's conviction should be affirmed.
The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The Supreme Court of the United States has held that temporarily detaining a person during a traffic stop is a "seizure" of "persons" within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979). A police officer's decision to stop a person while traveling in a motor vehicle is therefore subject to the "constitutional imperative" that the stop not be "unreasonable" under the circumstances. Whren v. United States, 517 U.S. 806, 809- 10 (1996).
As the majority notes, in order to make a valid traffic stop, an officer must have probable cause to believe there has been a violation of a traffic law. Prickett v. State, 2016 Ark.App. 551, 506 S.W.3d 870. Probable cause is defined as "facts or circumstances within a police officer's knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected." Id. at 3 506 S.W.3d at 872. The degree of proof needed to sustain a finding of probable cause is less than the proof needed to sustain a criminal conviction; in assessing whether probable cause exists, the appellate review is liberal rather than strict. Baker v. State, 2022 Ark.App. 53, 640 S.W.3d 431.
It is undisputed that all Arkansas drivers are required to have valid car insurance. Arkansas Code Annotated...
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