Jefferson v. State

• Decision Date: 09 January 2002
• Docket Number: No. CA CR 01-267.,CA CR 01-267.
• Parties: Samuel James JEFFERSON v. STATE of Arkansas.
• Court: Arkansas Court of Appeals

64 S.W.3d 791

76 Ark. App. 300

Samuel James JEFFERSON v. STATE of Arkansas.

No. CA CR 01-267.

Court of Appeals of Arkansas, Division II.

January 9, 2002.

William R. Simpson, Jr., Public Defender; Kent C. Krause and Ashley Riffel, Deputy Public Defenders, by: Deborah R. Sallings, Deputy Public Defender, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.

WENDELL L. GRIFFEN, Judge.

Samuel Jefferson appeals from his conviction for possession of cocaine. He argues that the trial judge erred in denying his motion to suppress because his stop and detention were not based upon reasonable suspicion and because the seizure of the evidence was impermissibly tainted by his subsequent illegal detention. We agree. Therefore, we reverse and remand for a new trial.

In the early morning hours of August 19, 1999, appellant was stopped by officers of the Little Rock Police Department as he walked through Vorhees Trailer Park in Little Rock. The officers stopped appellant in an attempt to ascertain his identity. As appellant approached the officers, he dropped a small package, which the officers retrieved. Subsequent chemical analysis of the package confirmed that the package contained 2.138 grams of cocaine. Appellant was charged with possession of cocaine with intent to deliver.

Appellant filed a motion to suppress the evidence seized in the search. Citing Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), he alleged that the initial encounter was impermissible under Arkansas Rule of Criminal Procedure 2.2, in that the information requested was not being sought in the investigation or prevention of a crime. Appellant also asserted that the officers had no reasonable or articulable suspicion that he was armed and dangerous, or had committed or was about to commit a felony or a misdemeanor as described in Rule 3.1.

The testimony at trial established that Officer Charles Allen and Officer Charles Johnson were conducting a routine patrol in Vorhees Trailer Park on August 19, in response to numerous complaints and arrests due to narcotic activity by residents and nonresidents in the area. The officers came into the trailer park with their lights off at around 2:30 a.m., and observed appellant walking through the trailer park. When appellant walked in front of the police car, Johnson turned on his headlights. Appellant appeared startled when he saw the vehicle and changed the direction in which he was walking. The officers stopped, and Allen stepped out of the vehicle and asked appellant to approach so that they could determine whether he was a resident of the trailer park. Initially, appellant did not approach the car. Johnson testified that appellant hesitated and attempted to "evade" the officers.

Allen again called to appellant, who then approached the police car. As appellant approached Allen's side of the car, he had his hand in his right pocket. Allen testified that appellant acted as if he were going to turn away. Allen again commanded appellant to approach the vehicle and drew his weapon. Allen saw appellant throw something to the ground as appellant moved toward the vehicle. The officers ascertained appellant's identity and searched the immediate area. Allen retrieved the item that appellant had thrown, which was a pill bottle containing ten to fifteen pieces of an off-white rock-like substance.

After the officers' testimony, appellant's counsel moved to suppress the evidence of the pill bottle and its contents. The trial court found that appellant had not been actually detained until after the officer observed him throw something from his hands and that he was not searched in order to lead to the evidence that was introduced against him. It further noted that if appellant had discarded something, the officers had a right to pick it up. The court found that given the time of the day, the officers' knowledge regarding the known drug activity at that location, and the fact that appellant was coming from between two trailers (as opposed to being on a public street) gave the officers authority to stop him and determine the reason for his presence to prevent crimes. The trial court denied appellant's motion to suppress. After a jury trial, appellant was found guilty of the lesser-included offense of possession of cocaine and received a five-year prison sentence. He appeals solely from the denial of his motion to suppress.

In reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances. See Hale v. State, 61 Ark.App. 105, 968 S.W.2d 627 (1998). Where the trial court denied a defendant's motion to suppress, we will reverse only if, in viewing the evidence in the light most favorable to the nonmoving party, the trial court's ruling is clearly against the preponderance of the evidence. See id.

I. Whether the Initial Stop was Proper

Appellant argues that the trial court erred in denying his motion to suppress because at the time of the stop, the officers lacked reasonable suspicion that he had committed or was about to commit any criminal offenses and because the officers were not investigating a particular crime. He maintains that his behavior did not give the officers reasonable suspicion to make the initial stop and, therefore, the subsequent search was illegal. Specifically, he argues that the fact that he was outside at 2:30 a.m. in a high-crime area did not give the officers ground for reasonable suspicion, nor did the fact that he initially hesitated before complying with the order to approach the vehicle. He asserts that pursuant to Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), citizens have the right to ignore police who approach them without probable cause or reasonable suspicion and may go about their business with no response. Appellant also argues that although he changed his direction of travel, he did not engage in unprovoked flight as did the defendant in Wardlow, and he was merely ignoring the police, as he is permitted to do. Finally, he maintains that a person's mere refusal to cooperate does not justify detention or seizure. See Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

We agree that nothing about appellant's behavior prior to the stop gave the officers reasonable suspicion that would justify a stop under Rule 3.1 or Rule 2.2. Rule 3.1 provides:

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.

Rule 2.1 defines reasonable suspicion 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." Factors that support a reasonable finding of reasonable suspicion include: a person's conduct and demeanor, his gait and manner, the time of day or night the suspect is observed, the location involved, the incidence of crime in the immediate neighborhood, a person's apparent effort to conceal an article, and a person's effort to avoid identification or confrontation by the police. See Ark.Code Ann. § 16-81-203 (1987). Although an 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, this encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. See Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998).

Rule 2.2 provides that a law enforcement officer may request any person to furnish information or to otherwise cooperate in the investigation or the prevention of a crime. The officer may request, but may not require the person to respond to such requests. Appellant also argues that the search was not justified under Rule 2.2 because there was no evidence that the officers were investigating a particular crime. Although the area was a known high drug-traffic area, the officers did not testify that they had reports of any drug activity that evening. Nor was there any evidence that he was hiding or acting furtively, that he fled, that he was wearing bulging clothing that might conceal contraband, or that he was known to the officers as a prior offender. He argues that even in a high-crime area, unless a person is doing something indicative of criminal activity, the police may not approach that person, even under the guise of ascertaining his identity.

Appellant maintains that the application of these rules in Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), and Jennings v. State, 69 Ark.App. 50, 10 S.W.3d 105 (2000), compels reversal in this case. We agree. In those cases, the Arkansas Supreme Court reversed on similar facts. In Stewart, the police officer was patrolling a known drug area at 1:45 a.m. He spotted the defendant standing on the corner outside of her home. Based upon the late hour, the place where she was standing, and the fact that he had made several prior arrests...