Frette v. City of Springdale

• Decision Date: 15 January 1998
• Docket Number: No. CR,CR
• Parties: Paul FRETTE, Appellant, v. CITY OF SPRINGDALE, Appellee, 97-712.
• Court: Arkansas Supreme Court

Page 734

959 S.W.2d 734

331 Ark. 103

Paul FRETTE, Appellant, v. CITY OF SPRINGDALE, Appellee,

No. CR 97-712.

Supreme Court of Arkansas.

Jan. 15, 1998.

Kenneth Osborne, Fayetteville, for Appellant.

Winston Bryant, Atty. Gen., J. Brent Standridge, Asst. Atty. Gen., Little Rock, for Appellee.

IMBER, Justice.

The primary issue in this case is whether a police officer acted lawfully in ordering appellant, Paul Frette, the occupant of a parked tractor-trailer, out of his vehicle. The officer, who suspected that Frette was intoxicated, acted solely on the basis of a tip phoned in by an identified citizen informant. We conclude that the tip carried with it sufficient indicia of reliability to give the officer reasonable suspicion to justify an investigatory stop. Accordingly, we affirm the trial court's denial of appellant's motion to suppress.

While there was no testimony taken in the case, the parties stipulated to the following facts. At 6:51 p.m. on June 15, 1995, Jerry Smith, a truck driver from Jonesboro, Georgia, phoned in a tip to the Springdale Police Department. Smith provided the radio dispatcher with his name, address, and occupation. He stated that he had observed an elderly male in a red Volvo tractor-trailer drinking beer in the cab of his vehicle in the commercial truck parking lot behind the McDonald's restaurant located on West Sunset in Springdale. The lot had nine spaces designated for commercial vehicles. The police department had no prior dealings with Smith. At 7:02 p.m., Officer Kwano responded to the dispatch and discovered that Frette was behind the wheel inside a red tractor-trailer parked immediately behind McDonald's in the designated parking area.

Officer Kwano approached the vehicle and ordered Frette to step out of the vehicle. When Frette exited, Officer Kwano noticed the strong smell of intoxicants on Frette, who swayed as he spoke. Frette failed various field-sobriety tests and was arrested at 7:49 p.m. A test performed at the police station revealed that Frette had a .08% blood-alcohol content.

Frette was found guilty in municipal court of driving while intoxicated as a holder of a commercial driver's license. On appeal to circuit court, Frette filed a motion to suppress his "statements ... blood alcohol analysis, physical description [of Frette], statements of an informant, descriptions of field sobriety tests, and a physical [of Frette]" on the ground that this evidence was obtained as a result of an illegal seizure. The trial court denied the motion to suppress, and accepted Frette's conditional guilty plea to one count of driving while intoxicated while holding a commercial driver's license. Pursuant to Ark. R.Crim. P. 24.3(b), Frette's plea was conditioned on an appeal of the trial court's adverse ruling on his pretrial motion to suppress.

The Court of Appeals reversed and remanded, holding that the trial court erroneously denied the motion to suppress. Frette v. State, 58 Ark.App. 81, 947 S.W.2d 15 (1997). We granted the State's petition for review, and now review the case as though it was originally filed with this court. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997); Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997).

1.

We first consider Frette's challenge to the sufficiency of the evidence and the factual basis for his plea. Frette entered a conditional guilty plea pursuant to Ark. R.Crim. P. 24.3(b), which provides:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty ... reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw the plea.

As a general rule, one is not allowed to appeal from a conviction resulting from a guilty plea, aside from jurisdictional defects. Ark. R.App. P.--Crim. 1(a). However, "Rule 24.3(b) presents an exception to the rule but only for the purpose of determining on appeal whether an appellant should be allowed to withdraw her plea if it is concluded that evidence should have been, but was not, suppressed." Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). This court has strictly construed the permissible scope of an appeal under Rule 24.3(b). In Wofford the appellant entered a conditional guilty plea under Rule 24.3(b) and we declined to address an upward departure from the sentencing guidelines and an alleged violation concerning cameras in the courtroom because these points did not concern "suppression of evidence." Id. See also Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990) (declining to reach the merits of a speedy-trial argument when the appellant entered a Rule 24.3(b) conditional plea of nolo contendere on the charge). Likewise, we decline to reach the merits of Frette's challenge to the sufficiency of the evidence and the factual basis for his plea.

2.

We next consider the trial court's adverse determination of Frette's pretrial motion to suppress evidence. In reviewing the denial of a motion to suppress, this court makes an independent examination based on the totality of the circumstances. Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997), cert. denied, --- U.S. ----, 117 S.Ct. 2411, 138 L.Ed.2d 176 (1997); Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996). The evidence is viewed in the light most favorable to the State as appellee, and this court will reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Id.

This court has previously categorized police-citizen encounters into three categories:

The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a "seizure" within the meaning of the fourth amendment.... The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an "articulable suspicion" that the person has committed or is about to commit a crime. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause.

Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990) (citing U.S. v. Hernandez, 854 F.2d 295 (8th Cir.1988)). In the present case, Officer Kwano's actions in ordering Frette out of his parked truck to investigate the DWI tip falls into the second category, a "seizure" under the Fourth Amendment requiring "[t]he police officer ... to be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion." Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Thompson, supra, we held that an officer with reasonable suspicion under Ark. R.Crim. P. 3.1 to suspect that the occupant of a parked vehicle was about to commit a DWI could ask the occupant to exit his car. Likewise, other courts have recognized that an officer with reasonable suspicion to conduct an investigatory stop may order an occupant out of a parked vehicle. See, e.g., Popple v. State, 626 So.2d 185 (Fla.1993); Johnson v. State, 658 S.W.2d 623 (Tex.Crim.App.1983), overruled on other grounds, 956 S.W.2d 33, 1997 WL 685978 (Tex.Crim.App.1997); People v. Freeman, 413 Mich. 492, 320 N.W.2d 878 (1982); People v. Harrison, 57 N.Y.2d 470, 457 N.Y.S.2d 199, 443 N.E.2d 447 (1982).

Frette challenges the legality of his detention under Ark. R.Crim. P. 3.1, governing investigative stops:

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. An officer acting under this rule may require the person to remain in or near such place in the officer's presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

"Reasonable suspicion" is further defined by our rules of criminal procedure as:

[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.

Ark. R.Crim. P. 2.1. The justification for an investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized and articulable reasons indicating the person or vehicle may be involved in criminal activity. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995) (quoting Hill v. State, 275 Ark. 71, 628 S.W.2d 284, (1982).

The substance of Frette's argument is that the tip was provided by an unreliable informant over the telephone, making the information provided in the tip insufficient to give Officer Kwano the reasonable suspicion necessary to conduct an investigatory stop. Frette cites cases generally dealing with the sufficiency of information provided by informants in establishing reasonable suspicion. For example, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the United States Supreme Court examined whether a police officer legally conducted an investigatory stop...