Johnson v. State, CACR

• Decision Date: 06 October 1993
• Docket Number: No. CACR,CACR
• Citation: 43 Ark.App. 145,862 S.W.2d 290
• Parties: Kenneth JOHNSON, Appellant, v. STATE of Arkansas, Appellee. 92-1374.
• Court: Arkansas Court of Appeals

Page 290

862 S.W.2d 290

43 Ark.App. 145

Kenneth JOHNSON, Appellant, v. STATE of Arkansas, Appellee.

No. CACR 92-1374.

Court of Appeals of Arkansas Division II.

Oct. 6, 1993.

Mark S. Cambiano, Morrilton, for appellant.

Clementine Infante, Asst. Atty. Gen., Little Rock, for appellee.

JENNINGS, Chief Judge.

At about 3:00 a.m. on January 10, 1992, Kenneth Johnson was driving a 1979 Chevrolet Malibu on Markham Street in Little Rock. He was stopped by Little Rock Police Officer Greg Birkhead, who suspected the car might be stolen. During a pat-down search Officer Birkhead found a knife and a quantity of cocaine in Johnson's pocket. The appellant was subsequently charged with possession of cocaine with intent to deliver.

Johnson filed a motion to suppress, contending that the officer had no reasonable suspicion to stop him. The trial court denied the motion and Johnson entered a conditional plea of guilty under Ark.R.Crim.P. 24.3(b). He was sentenced by the court to five years imprisonment under Act 378 of 1975.

The sole issue presented is whether Officer Birkhead had reasonable suspicion to stop the appellant's car. We hold that the circuit court's decision that there was reasonable suspicion is not clearly against a preponderance of the evidence and affirm.

Officer Birkhead testified that on January 10, 1992, he was patrolling around Markham and Chester Streets in Little Rock. At a stop light he pulled up beside the car Johnson was driving and noticed that the left vent window was broken out. Birkhead testified that he immediately suspected the vehicle might be stolen and was trying to run a radio check on the license plate. Birkhead testified:

The light changed to green, and I allowed the vehicle to get up in front of me. I got behind it, and I followed it to Markham and Victory. As it turned the corner, I could get a good angle on the window, and I observed that it was broke out. I suspected the vehicle might be stolen at that point, so I changed my radio channel to a channel eight, which is a secondary traffic channel, and I was going to try and run a check on the license plate.

The vehicle then quickly turned. We turned from Markham onto Victory. We went about a half block, and then he turned right again, which would have been going west bound on Markham again, and picked up the speed. So I couldn't get a good look at the plate again.

I sat my radio down. I tried to catch up to the vehicle. The vehicle made it to the parking lot, which would be down in the train station where Slick Willy's the club is. The vehicle did a U-turn and started to come right back at me, so I had no choice then. I was very suspicious at that time.

It appeared the vehicle was trying to elude me, so I cut across in front of it, put my spot light on it, put my take-down lights on it, and then I activated my blue lights and blocked the vehicle. He then came to a stop. I exited my vehicle and approached the vehicle at that time.

Officer Birkhead testified that in his two and one-half years with the Little Rock Police Department he had been involved in the recovery of hundreds of stolen vehicles and that "80 to 90 percent of them" had broken side windows. He also testified that the appellant committed no traffic offense and the car eventually turned out not to have been stolen.

"Reasonable suspicion," which is something less than probable cause, is required to constitutionally justify an investigative stop. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988); Lambert v. State, 34 Ark.App. 227, 808 S.W.2d 788 (1991); Ark.R.Crim.P. 3.1. Reasonable suspicion is defined by Ark.R.Crim.P. 2.1 as "a suspicion based on facts or circumstances which of themselves do not give rise to the...