Fernandez v. State

• Decision Date: 17 September 1990
• Docket Number: No. CR,CR
• Citation: 303 Ark. 230,795 S.W.2d 52
• Parties: Dagoberto FERNANDEZ, Appellant, v. STATE of Arkansas, Appellee. 90-65.
• Court: Arkansas Supreme Court

Page 52

795 S.W.2d 52

303 Ark. 230

Dagoberto FERNANDEZ, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-65.

Supreme Court of Arkansas.

Sept. 17, 1990.

Charles A. Potter, Texarkana, for appellant.

Ann Purvis, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

Appellant appeals his conviction of possession of cocaine with intent to deliver for which he was sentenced to forty years imprisonment and fined $20,000. His sole argument for reversal is that the trial court erred in finding he knowingly and voluntarily consented to the search of the vehicle he was driving and in refusing to suppress the cocaine obtained during the search. Although we believe the record supports the validity of the consent search, we need not discuss that issue in detail because appellant lacked standing to challenge the vehicular search in the first place. Because he lacked such standing, we affirm.

On the morning of August 21, 1988, state police officers, Mike Brown and Wallace Martin, while on routine patrol, were passed by a car driven by the appellant. Officer Brown testified that his vehicle was traveling at sixty-five miles per hour and that he clocked appellant's vehicle at sixty-eight miles per hour. Appellant also made an improper lane change after passing the officers. The officers stopped appellant, and after doing so, Brown approached appellant's car while Officer Martin remained with the patrol car. Brown obtained appellant's drivers license and directed Martin to run a check on it. Meanwhile, Brown began writing out a warning ticket for speeding and improper lane change when Martin notified Brown that appellant's drivers license had expired.

According to Brown, he then became suspicious when appellant told him that he had borrowed the car from a friend and that he was en route to Little Rock to pick up his wife. However, appellant did not know the name of the person from whom he had borrowed the car, did not know where he was supposed to pick up his wife and could not even produce a phone number to call in order to contact his wife. At this point, Brown directed the appellant's passenger, Mr. Lucio Cerda, to step out of the car and asked him where he and appellant were going. Mr. Cerda informed Brown that they were going to Mississippi to buy a wrecked car. While he had been talking to the two men, Brown learned from Martin that the appellant had a criminal history. Brown testified that the men became increasingly nervous during his conversation with them.

Brown said that he began to suspect criminal activity, and accordingly, he informed appellant that he would like to search the vehicle if appellant would consent to the search. Brown then produced a consent-to-search form which outlined in English and Spanish the individual's rights with respect to a consensual search.

At this point, substantial disparity exists between appellant's and the officers' versions of what then took place. In sum, the officers testified they read the entire consent search form to appellant in English and appellant, who spoke good English, also read the rights portion of the form which was in Spanish. Brown testified appellant indicated he understood the search form completely. Appellant, on the other hand, claimed the search form was never read to him and that he could not read English and could only "kind of" read Spanish. He further asserted he did not understand the form or the English words added to it providing the officers could search the entire car. ¹ The officers' and appellant's testimonies also conflicted as...