Jackson v. State

• Decision Date: 06 March 1991
• Docket Number: No. CACR,CACR
• Citation: 34 Ark.App. 4,804 S.W.2d 735
• Parties: Dwight JACKSON, Appellant, v. STATE of Arkansas, Appellee. 90-137.
• Court: Arkansas Court of Appeals

Page 735

804 S.W.2d 735

34 Ark.App. 4

Dwight JACKSON, Appellant, v. STATE of Arkansas, Appellee.

No. CACR 90-137.

Court of Appeals of Arkansas En Banc.

March 6, 1991.

William R. Simpson, Jr., Public Defender, Little Rock, for appellant.

Lynley Arnett, Asst. Atty. Gen., Little Rock, for appellee.

MAYFIELD, Judge.

On May 21, 1987, appellant pleaded guilty to a charge of burglary and imposition of sentence was withheld for a period of five years conditioned upon compliance with certain conditions, one of which was to refrain from violating any law punishable by imprisonment. On October 18, 1989, a petition to revoke was filed which alleged appellant had violated the terms of his suspended imposition of sentence by possessing a controlled substance (crack cocaine), and on that same date an information was filed charging appellant with violating the statute prohibiting possession of such a substance.

On January 16, 1990, the court, by agreement, heard the revocation petition and the possession charge together using the same evidence for each case. At the conclusion of the hearing, the court revoked the suspended imposition of sentence and sentenced appellant to six years in the Arkansas Department of Correction. Appellant was also found guilty of possession of a controlled substance and was sentenced to three years on that conviction, to be served consecutively to the six-year sentence.

On appeal, appellant argues that the trial court erred in its failure to suppress as evidence the crack cocaine contained in a matchbox which was found in the appellant's jacket pocket as a result of a "pat down" made by a policeman. It is appellant's contention that this evidence was seized as a result of an illegal search. Specifically, it is contended that the officer did not have grounds to form a "reasonable suspicion" that appellant was involved in criminal activity; therefore, the officer's stop of appellant was unlawful and the cocaine should have been suppressed as evidence.

We first note that the exclusionary rule is generally not applicable to revocation proceedings. Dabney v. State, 278 Ark. 375, 646 S.W.2d 4 (1983); Queen v. State, 271 Ark. 929, 612 S.W.2d 95 (1981); McGhee v. State, 25 Ark.App. 132, 752 S.W.2d 303 (1988). Based upon the authority of these cases, we think the trial court's revocation should be affirmed under the circumstances of the instant case. However, we do not think the trial court erred in refusing to suppress the cocaine as evidence in this case, therefore, we also affirm the conviction for possession.

At trial, Mark Johnson testified that he had been working for fifteen months as a patrol officer for the North Little Rock Police Department. He said he first came in contact with the appellant on May 11, 1989, at approximately 9:30 to 9:45 p.m. while making an extra patrol through the Dixie Addition. Officer Johnson testified that this is basically a residential area, and "we get more calls there than other places in the city." He also testified that at roll call at the start of his shift, it is pointed out where extra patrol might be needed and "things to be on the lookout for," and in May of 1989, the police department was getting complaints, several times a week, about drug trafficking in the Dixie Addition, and at roll call these complaints were talked about.

On the night of May 11, Officer Johnson had been through the Dixie Addition one time and several male subjects ran from him. Because of that, two more units were called, and when they went back through the area, the appellant and three or four other males were standing in front of the abandoned grocery store located in the 800 block of E Street. The officers had received information about drug trafficking at the corner of Ninth and E Streets. So, the officers approached the men in front of the abandoned building to see what they were doing and asked them for identification. While the officers were approaching, one of the men walked away. The officers then patted down the other individuals to check for weapons. Johnson said this was for the officers' own protection because he had on several occasions arrested people in this area who had guns on them.

Johnson patted down the appellant and felt something hard in his right jacket pocket. Johnson then reached into the pocket and found two matchboxes. One was empty and the other contained three rocks of what the officer thought was crack cocaine, so he arrested the appellant. It was stipulated that a chemist would testify that the substance in the box tested positive for cocaine.

The appellant correctly argues that stopping and detaining a person is controlled by Ark.R.Crim.P. 3.1 which 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.

Also, as appellant points out, the meaning of the term "reasonably suspects" as used in Ark.R.Crim.P. 3.1, supra, is defined in Ark.R.Crim.P. 2.1 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." The appellant also recognizes that we are dealing with an area of the law which has been greatly influenced by the United States Supreme Court decision of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In fact, the Commentary following Ark.R.Crim.P. 2.1 points out that Rules 2 and 3 of our Rules of Criminal Procedure are characteristic of those generated by the Terry v. Ohio decision. These rules were discussed at length by the Arkansas Supreme Court in Hill v. State, 275 Ark. 71, 80, 628 S.W.2d 284 (1982), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982), where it was said:

The courts have used various terms to describe how much cause or suspicion is necessary or reasonable in order to stop a person or vehicle. The common thread which runs through the decisions makes it clear that the justification for the investigative stops 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. U.S. v. Cortez, 449 U.S. 411 [101 S.Ct. 690, 66 L.Ed.2d 621] (1981); Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587 (1981); Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968).

The appellant contends, however, that in the instant case "Officer Johnson's stop failed the 'reasonable suspicion' test as there were not specific, particularized, and articulable reasons indicating involvement by the appellant in criminal activity." Since we do not agree, rather than attempting to compare the facts in various cases with the facts in this case, we will discuss the general principles we think the cases on this point teach.

To start with, we point out that in reviewing a trial judge's decision on a motion to suppress, this court makes an independent determination based upon the totality of the circumstances but will reverse the trial court's ruling only if that ruling was clearly against the preponderance of the evidence. Campbell v. State, 294 Ark. 639, 642, 746 S.W.2d 37 (1988); Dees v. State, 30 Ark.App. 124, 128, 783 S.W.2d 372 (1990).

The United States Supreme Court has said that the Fourth Amendment bars only unreasonable searches and seizures and in determining reasonableness, "we have balanced the intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 1096, 108 L.Ed.2d 276, 284 (1990). In United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981), the Court said that terms like "articulable reasons" are not self-defining and "fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances--the whole picture--must be taken into account." The Court also said:

The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions--inferences and deductions that might well elude an untrained person.

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behaviour; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

449 U.S. at 418, 101 S.Ct. at 695. And in Tillman v. State, 275 Ark. 275, 280, 630 S.W.2d 5 (1982), the Arkansas Supreme Court stated:

In United States v. Brignoni-Ponce, 422 U.S. 873 [95 S.Ct. 2574, 45 L.Ed.2d 607] (1975), the court dealt with the problem of the United States Border Patrol's authority to stop automobiles near...