Hammons v. State

Decision Date10 March 1997
Docket NumberNo. CR,CR
Citation327 Ark. 520,940 S.W.2d 424
PartiesBilly Lowell HAMMONS, Appellant, v. STATE of Arkansas, Appellee. 96-413.
CourtArkansas Supreme Court

Eddie Christian, Jr., Fort Smith, for appellant.

Winston Bryant, Attorney General, Brad Newman, Assistant Attorney General, Little Rock, for appellee.

BROWN, Justice.

Appellant Billy Lowell Hammons appeals his convictions and sentences for possession of methamphetamine with intent to deliver and possession of marijuana with intent to deliver. He was sentenced to 40 years in prison with 10 years suspended on the first conviction and to 10 years on the second conviction, with the two sentences to run concurrently. He appeals and urges that the trial court erred in refusing to suppress the drugs seized in what he terms was an illegal arrest. We find no error in the trial court's ruling, and we affirm.

On March 1, 1995, Hammons was arrested for possession of controlled substances. He was charged on March 3, 1995, with possession of methamphetamine and marijuana with intent to deliver and with possession of dilaudid. The dilaudid charge was later nolle prossed. On June 12, 1995, Hammons moved to suppress certain drugs that were seized by a Fort Smith police detective following his March 1, 1995 arrest. At the hearing on Hammons's motion, Fort Smith Police Detective Dennis Alexander described the events surrounding the arrest. He testified that he received an anonymous call from a woman on February 23, 1995. The caller informed him that a man called "Wild Bill" of Wilburton, Oklahoma, was supplying a number of smaller dealers with methamphetamine in both eastern Oklahoma and western Arkansas. She said these smaller dealers were friends of hers who had been arrested. One was the caller's roommate, and one was a woman named Shannon Smith. She related to Detective Alexander that "Wild Bill" drove a 70 or 80 model black Corvette, and that he was in his late 30's or early 40's, had a slender build, and often wore a mustache and a beard. Detective Alexander testified at the hearing that the caller's information was reliable because she was "very knowledgeable" about the methamphetamine trade in the area and about people who had been arrested for methamphetamine sales.

Detective Alexander next testified that on March 1, 1995, he received information from Fort Smith Police Detective Wayne Barnett, who had received information from the police dispatcher about a second anonymous call from a female who stated that one of the largest drug suppliers in the area would be at Old Town Grain and Feed, a local bar that sold alcoholic beverages, that evening and that he would be driving a black Corvette. Based on the tip, Detective Alexander and Detective Barnett drove through the area of Old Town three times and did not see the black Corvette. At approximately 11:30 p.m. that night, Detective Alexander, who was now alone and driving a Chevrolet Astro minivan, drove by Old Town and saw a black Corvette backed into a parking spot with two people sitting in the car. The dome light in the Corvette was on, which Detective Alexander testified was significant because he routinely checked cars in parking lots of drinking establishments with dome lights on to assist the State Alcoholic Beverage Commission in policing illegal drug and alcohol consumption in motor vehicles.

Detective Alexander stated that he circled the block and entered the parking lot, which was open to the public. As he pulled within five to ten feet of the Corvette, his headlights illuminated two people in the car. They both looked up and then began "scrambling" inside the car. Detective Alexander explained that they "began reaching down under the seat, turning and twisting as if they were trying to conceal something or put something up." He could look down inside the car from his vantage point and testified that he saw the driver (later identified as Hammons) reach under his seat and come up with what the police detective believed to be a gun. At that point, Detective Alexander stated that he turned his blue light on to let the two people know that he was a police detective. (On cross-examination Detective Alexander contradicted himself and testified that he turned on his blue light when he saw the "scrambling.") He drew his pistol, stepped down from the minivan, and ordered the passengers to show their hands. The passenger (later identified as Michael David Rhea) complied, but Hammons had to be told five or six times to show his hands. After reaching under the seat again, Hammons did as he was instructed.

Hammons was ordered to exit the vehicle, and while doing so, he dropped a brown pouch on the ground. The police detective patted Hammons down for weapons and discovered a vial in his right coat pocket that contained an off-white, rock-like substance that he believed to be methamphetamine. He testified that he also found suspicious items on Rhea and in the pouch that Hammons dropped on the ground. Hammons told Detective Alexander that his nickname was "Wild Bill," and that he was from Wilburton, Oklahoma. A pistol was found in the Corvette under the driver's seat, with the magazine sitting on the console.

On cross-examination, Hammons's counsel attacked the reliability of the information received by Detective Alexander from the anonymous caller on February 23, 1995. Hammons's counsel emphasized that much of the caller's references to the methamphetamine trade could have been garnered from public records. He also questioned the accuracy of the information that had been relayed to Detective Alexander from the March 1, 1995 anonymous caller and later noted during examination of the police dispatcher that no details regarding name, time, or whether illegal drug transactions would transpire were imparted to the dispatcher.

The trial court denied Hammons's motion to suppress, and in doing so stated that it was basing its ruling primarily on the police detective's statement that the grounds for arrest developed on the parking lot where a dome light was on and where the detective saw the occupants "squirming" about in the Corvette, trying to avoid something. The trial court concluded that these actions raised reasonable suspicion for the police detective to at least check out the circumstances. The trial court also concluded that in simply pulling the minivan up to the Corvette, the police detective had not blocked the Corvette's path, and that Hammons was free to leave. The court further observed that the sighted gun properly played a role in Detective Alexander's actions. Following this ruling by the trial court, Hammons entered a conditional plea of nolo contendere to the charges pursuant to Ark. R.Crim. P. 24.3 and was sentenced accordingly.

The sole issue on appeal is whether Detective Alexander had grounds to effect a seizure of Hammons under Ark. R.Crim. P. 3.1. In reviewing a trial court's denial of a motion to suppress, this court makes an independent determination based on the totality of the circumstances and reverses only if the ruling is clearly against the preponderance of the evidence. Evans v. State, 326 Ark. 279, 931 S.W.2d 136 (1996). See also Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Rule 3.1 of the Arkansas Rules of Criminal Procedure provides in pertinent part:

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.

Id. This court has defined "reasonable suspicion" as "suspicion based upon facts or circumstances which give rise to more than a bare, imaginary, or purely conjectural suspicion." Williams v. State, 321 Ark. 344, 348, 902 S.W.2d 767, 769 (1995).

Hammons advances the theory that this was essentially an "informant" case, and that Detective Alexander's information was insufficient to form the reasonable suspicion necessary under Ark. R.Crim. P. 3.1 for a stop and detention. In making this assertion, he relies on Lambert v. State, 34 Ark.App. 227, 808 S.W.2d 788 (1991). In Lambert, the Arkansas State Police received an anonymous tip from a person in Little Rock that a man named "Jerry" would be leaving the Hot Springs area en route to Little Rock at approximately 3:00 p.m. and would be transporting approximately ten pounds of marijuana in a black truck with "Woodline Motor Freight" written on its side in orange letters. Acting on this information, a state trooper stopped a truck matching this description at approximately 3:50 p.m. The truck was heading from Hot Springs toward Little Rock on Highway 70. The driver identified himself as Jerry Lambert and admitted that he had marijuana in his vehicle.

Lambert's motion to suppress the marijuana was denied, and he pled guilty to possession of marijuana. On appeal, the Arkansas Court of Appeals reversed the trial court and suppressed the evidence, relying primarily on Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). The United States Supreme Court refused to suppress the evidence in Alabama v. White but did so because the information collected from the anonymous tip was sufficiently corroborated. The court of appeals in Lambert, however, concluded that there was insufficient corroboration in that case. For example, the court pointed out that there was no verification of the departure point and no certainty that the driver was actually going to Little Rock. The court further made reference to an overall lack of detail in the anonymous call.

In Alabama v. White, supra, police officers received an anonymous tip that Vanessa White would be leaving 235-C Lynwood...

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