Lilley v. State, CA CR 03-1285.

• Court: Arkansas Court of Appeals
• Writing for the Court: Larry D. Vaught
• Citation: Lilley v. State, 199 S.W.3d 692, 89 Ark.App. 43 (Ark. App. 2004)
• Decision Date: 08 December 2004
• Docket Number: No. CA CR 03-1285.,CA CR 03-1285.
• Parties: James Jesse LILLEY v. STATE of Arkansas.

199 S.W.3d 692

James Jesse LILLEY v. STATE of Arkansas.

No. CA CR 03-1285.

Court of Appeals of Arkansas, Division II.

December 8, 2004.

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Christian & Byars, by: Eddie Christian, Jr., Forth Smith, for appellant.

Mike Beebe, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

LARRY D. VAUGHT, Judge.

James Jesse Lilley entered a conditional plea of guilty to possession of marijuana with intent to deliver and possession of drug paraphernalia. He was sentenced to twenty-four months' imprisonment and a suspended imposition of sentence for ninety-six months. He appeals the denial of his motion to suppress evidence seized by law-enforcement officers during a search of his rental car following a traffic stop. In his motion, Lilley argued that officers violated Rule 3.1 of the Arkansas Rules of Criminal Procedure. Specifically, he asserted that because evidence was seized from his vehicle after the legitimate purpose of the valid traffic stop was complete, and the officers did not have a reasonable suspicion that he was committing, or had committed, or was about to commit a felony or a misdemeanor involving danger to persons or property, the evidence should have been suppressed. We agree and reverse.

On December 4, 2002, Officer Michael Bowman of the Van Buren Police Department was patrolling Interstate 40 when he observed a white Chevrolet traveling eastbound. As Officer Bowman followed the vehicle, in the course of a quarter of a mile, he observed the vehicle drive off of the road, onto the right shoulder, on three occasions. Officer Bowman pulled the vehicle over for the observed traffic infraction. Officer Bowman approached the automobile's passenger side in order to explain to the car's driver, Lilley, the reason for the stop. At this point Officer Bowman smelled the strong odor of air freshener and noticed several energy-drink cans on the Chevrolet's floorboard. While talking to Lilley, Officer Bowman observed that Lilley appeared "extremely nervous" because his hands were shaking despite the fact that it was warm in the car.

Officer Bowman asked Lilley for his license and the car's paperwork, which included a rental agreement. Officer Bowman then asked Lilley to accompany him to the patrol car while he issued a warning ticket. The two men sat in the patrol car as Officer Bowman ran a check on Lilley's driver's license and conducted a criminal-history check on Lilley. While the checks were being conducted, Lilley revealed to Officer Bowman that he was driving home to Chesapeake, Virginia, to visit his mother. Lilley also stated that he planned to drive back to California after a ten-day visit to Virginia. Officer Bowman inquired as to why the one-way rental agreement listed William Haller as its renter and listed Lilley as only an additional driver. Lilley explained that Haller's name was on the contract because Lilley did not have a credit card, which was required in order to rent the vehicle. Lilley further stated that in California he worked in a farmer's market. Officer Bowman testified that he found it odd that Lilley worked on a farm because he did not appear to be "the farming type," and his hands were not "beat up." During the course of this conversation, Officer Bowman testified that Lilley was shaking and fidgeting, as though "he was having a hard time controlling himself."

After the criminal-history check was completed, Officer Bowman returned Lilley's driver's license and rental agreement and issued the warning ticket. However, Officer Bowman did not tell Lilley that he was free to go. While the two men were still in the patrol car, Officer Bowman asked Lilley if he had anything illegal in his car. Officer Bowman observed an increase in Lilley's nervousness level. Officer Bowman then specifically inquired whether Lilley had guns or dead bodies in his automobile. Lilley looked at the officer, kind of laughed, and said, "No." Officer Bowman then asked Lilley if he had any marijuana in the car. Lilley looked away from Officer Bowman and, again, denied the allegation, but this time in a softer tone. Next, Officer Bowman made a similar, leading inquiry about cocaine and methamphetamine. In responding, Lilley again made eye contact and did not turn away from Officer Bowman as he answered in the negative.

Officer Bowman then asked Lilley for consent to conduct a search of Lilley's Chevrolet. Lilley refused the request. In response to the refusal, Officer Bowman stated that he was going to run his drug dog around the car anyway, just to be sure no drugs were in the car. By this juncture, Officer Olen Craig of the Arkansas State Police had arrived at the scene and sat with Lilley in the patrol car while Officer Bowman escorted the dog around Lilley's car. The drug dog alerted on Lilley's trunk. Officer Bowman explained to Lilley that the alert established probable cause to justify a search of the car. During the search, Officer Bowman discovered three duffel bags containing several large bricks of marijuana, and Lilley was arrested.

Lilley filed a timely motion to suppress the marijuana. Following an evidentiary hearing, the trial court denied the motion to suppress, concluding that after a police officer has concluded a routine traffic stop, the officer is authorized to continue to detain the motorist and conduct a canine sniff of the vehicle. The court noted that an officer may do so even though he has no reasonable suspicion that the vehicle may contain narcotics, so long as the officer has a police dog at his immediate disposal.

On appeal, Lilley argues that the marijuana should have been excluded because the search that uncovered it was the tainted fruit of an unreasonable detention. His argument is particularly persuasive in light of our supreme court's holding in Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). In Sims, the court concluded that Rule 3.1 of the Arkansas Rules of Criminal Procedure¹ requires that at the conclusion of a traffic stop an officer must possess reasonable suspicion before the officer can detain the motorist in order to run a drug dog around the motorist's vehicle. The State acknowledges that now, in the post-Sims landscape, Rule 3.1 alone is an insufficient ground to justify the detention. However, the State counters that the trial court was still correct in its denial of Lilley's motion to suppress because Officer Bowman developed, during the course of the routine traffic stop, reasonable suspicion to detain Lilley in order to permit a dog sniff of his automobile. Officer Bowman testified that before he had established probable cause he did suspect criminal activity was afoot. However, Officer Bowman acknowledged that the reasonableness of his suspicion did not manifest—become more than a hunch—until after he directly asked Lilley about marijuana and received an evasive answer.

Thus, as a threshold question, we must determine whether Lilley's continued detention in the patrol car, after the completion of a valid stop for a traffic violation, constitutes a seizure within the purview of the Fourth Amendment. If the detention is a seizure, we must also determine the issue of whether the law-enforcement officer possessed reasonable suspicion to detain Lilley in order to conduct the dog sniff of his automobile.

Lilley does not contend that the initial stop of his automobile was in violation of the Constitution. Indeed, he acknowledges that a traffic violation—however minor—creates probable cause to make the stop. Flores v. State, 87 Ark.App. 327, 194 S.W.3d 207 (2004). In Lilley's case, Officer Bowman's observation of Lilley's vehicle veering from the roadway provided probable cause for Officer Bowman to stop his automobile. Accordingly, there is no dispute regarding the legality of the initial stop of Lilley's automobile. Rather, Lilley claims that the length of the traffic stop was excessive, constituting an illegal detention, prior to the initiation of the drug-dog sniff.

During an investigative stop, officers may check for weapons and may take any additional steps "reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop." United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); see also United States v. Dawdy, 46 F.3d 1427, 1430 (8th Cir. 1995); Roberson v. State, 54 Ark.App. 230, 235, 925 S.W.2d 820, 823 (1996). Here, Officer Bowman conducted routine procedural checks relating to Lilley's criminal history and the validity of his driver's license and rental agreement. These "additional steps" constitute a reasonable detention prior to Officer Bowman's issuance of the warning ticket to Lilley. However, after the traffic stop was complete—once Lilley received his warning ticket, and his driver's license and rental agreement were returned—Officer Bowman continued to question Lilley.

Lilley contends that Officer Bowman violated his Fourth Amendment rights by continuing to detain him after the conclusion of the traffic-violation stop. The State counters that because Lilley consented to the continued detention after Officer Bowman's issuance of the warning ticket, there was no seizure. Indeed, it is axiomatic that not all personal contacts between law enforcement officers and citizens constitute seizures that implicate the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There is no bright line between a consensual encounter and a Terry stop; rather, the determination is a fact-intensive one that turns upon the unique facts of each case. See Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002). A seizure does not occur simply because a law enforcement officer approaches an individual and asks a few questions or requests permission to search an area—even if the officer has no reason to suspect the individual is involved in criminal activity—provided the officer does not indicate that compliance with his...