McDaniel v. State

• Decision Date: 27 January 1999
• Docket Number: No. CA,CA
• Citation: 985 S.W.2d 320,65 Ark.App. 41
• Parties: Larron Clark McDANIEL, Appellant, v. STATE of Arkansas, Appellee. CR 98-237.
• Court: Arkansas Court of Appeals

Page 320

985 S.W.2d 320

65 Ark.App. 41

Larron Clark McDANIEL, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 98-237.

Court of Appeals of Arkansas, Divisions II and III.

Jan. 27, 1999.

Paul Petty, Searcy, for appellant.

Winston Bryant, Atty. Gen., Gil Dudley, Asst. Atty., Little Rock, for appellee.

JOHN MAUZY PITTMAN, Judge.

The appellant in this criminal case was the driver of a pickup truck that was stopped for a traffic violation outside Damascus, Arkansas, on April 26, 1997, at 1:00 a.m. A police officer testified that, when he approached the vehicle, he smelled a strong odor of marijuana. Methamphetamine was found on the passenger in appellant's vehicle. The cab of the pickup truck was searched, but no marijuana was found. A search of a toolbox in the bed of the pickup truck revealed a briefcase with marijuana residue, and a small locked box containing methamphetamine and drug paraphernalia. Appellant was arrested and charged with possession of methamphetamine with intent to deliver, possession of marijuana, and possession of drug paraphernalia. He filed a motion to suppress the evidence obtained in the search; after a hearing, the motion was denied on November 17, 1997. He subsequently entered a guilty plea conditioned on his right to appeal the adverse determination of the pretrial motion to suppress, and was sentenced to 120 months in the Arkansas Department of Correction with 60 months suspended. This appeal is from the denial of his motion to suppress the evidence found in the search.

For reversal, appellant contends that the trial court erred in finding that the police officers had probable cause to search the locked toolboxes and briefcase in the bed of his pickup truck based solely on the officer's testimony that he smelled marijuana. We affirm.

In reviewing the denial of a motion to suppress evidence, we make an independent examination based upon the totality of the circumstances and reverse only if the decision is clearly against the preponderance of the evidence. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997). A warrantless search of an automobile is justified where there is probable cause plus exigent circumstances. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Lopez v. State, 29 Ark.App. 145, 778 S.W.2d 641 (1989). Rule 14.1(a) of the Arkansas Rules of Criminal Procedure provides in part:

An officer who has reasonable cause to believe that a moving or readily moveable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:

(i) on a public way or waters or other area open to the public[.]

Both factors are present in the case at bar. With respect to probable cause, there was evidence that the police officer smelled a strong odor of marijuana when he stopped the truck. This gave rise to probable cause to search under Brunson v. State, supra, where the supreme court stated that:

Quite simply, the smell of the marijuana or its smoke emanating from a vehicle constitutes facts and circumstances sufficient to warrant a person of reasonable caution to believe that a controlled substance has been or is being possessed or delivered or both, and, thus, that a violation of law has occurred or is occurring.

Courts in this state have held that the smell of marijuana or its smoke emanating from a vehicle gives rise to reasonable suspicion to detain the occupants to determine the lawfulness of their conduct, Phillips v. State, 53 Ark.App. 36, 918 S.W.2d 721 (1996), to search the vehicle, Lopez v. State, 29 Ark.App. 145, 778 S.W.2d 641 (1989) (citing Gordon v. State, 259 Ark. 134, 529 S.W.2d 330 (1976), cert. denied, 434 U.S. 929, 98 S.Ct. 414, 54 L.Ed.2d 289 (1977)), and to arrest some or all of its occupants, depending upon the particular circumstances, Crail [v. State ], 309 Ark. 120, 827 S.W.2d 157 [ (1992) ].

Brunson v. State, 327 Ark. at 571, 940 S.W.2d at 441-42. Brunson very clearly holds that the odor of marijuana, by itself, gives rise to probable cause to search a vehicle. The police officers therefore had probable cause to search in the case at bar.

With respect to exigent circumstances, the record shows that the appellant's vehicle was stopped on a rural road at 1:00 in the morning. The mobility of a vehicle in itself gives rise to a degree of exigency, even when the driver and passenger have been taken into custody. In Reyes v. State, 329 Ark. 539, 954 S.W.2d 199 (1997), the supreme court found exigent circumstances justifying the warrantless search of a vehicle for drugs after the driver had been taken into custody, reasoning that the contraband the vehicle was suspected to contain could otherwise have been removed by a third party, or even by a thief. Although the vehicle searched in Reyes was located in an urban motel parking lot, while the vehicle in the case at bar was on a rural road at 1:00 in the morning, we think that the risk of the contraband being removed was at least equally great in the case at bar.

Given the presence of probable cause and exigent circumstances, we hold that the trial court did not err in denying appellant's motion to suppress the evidence found in the search of his vehicle. ¹

ROBBINS, C.J., and BIRD, STROUD, and NEAL, JJ., agree.

GRIFFEN, J., dissents.

WENDELL L. GRIFFEN, Judge, dissenting.

I would reverse and remand appellant's conviction and sentence pursuant to the decision of the United States Supreme Court in Knowles v. Iowa, ---U.S. ----, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), and the decision of our supreme court in Scisney v. State, 270 Ark. 610, 605 S.W.2d 451 (1980). In Knowles, the Supreme Court invalidated a warrantless search of a car after a police officer stopped a motorist and issued a speeding citation. In Scisney, our supreme court held that discovery of several marijuana cigarettes in the passenger compartment of a vehicle did not supply probable cause for searching two old suitcases that were sealed by masking tape in the locked trunk of the car. The supreme court also held that discovery of those marijuana cigarettes did not provide the basis for a reasonable belief required for such a search by Rule 12.4 of the Arkansas Rules of Criminal Procedure.

Appellant was stopped for a traffic violation by Officer Tony Hartwick, a police officer in Damascus who was on patrol duty when he saw the truck that appellant was driving cross the center line for a substantial distance. Hartwick testified that he smelled the odor of smoked marijuana, but he found no evidence of marijuana when he looked in the vehicle. Appellant denied that he had been drinking or partaking of drugs, and Hartwick testified at the suppression hearing, "I believed him." Hartwick's abstracted testimony on cross-examination continued:

I was going to further my investigation for narcotics at that point because I could smell marijuana. Mr. McDaniel was nervous and I could smell marijuana. Most people are probably nervous when I stop them at one o'clock in the morning. My investigation was that I was going to search this truck for drugs. That is not the policy of the Damascus Police Department or my policy. I was going to search the truck because of Mr. McDaniel's nervousness and the smell of marijuana.

I started pilfering around inside the truck, but at that point I did not find anything. I did not ever find anything in the passenger compartment of the truck that had anything to do with drugs. I searched inside the truck with verbal consent.

Officer McNew got the passenger out for officer safety while I searched the vehicle. All he was doing was removing the passenger from the vehicle so I could search. The driver and the passenger had not given me any reason to believe they had weapons. They had not been a threat to me. They had not been drinking and they were not obnoxious or verbally threatening. I patted the driver down for weapons, but did not find any. The driver also said there were no weapons in the vehicle. I did not find anything in the vehicle.

I decided to search the locked compartment of the toolbox after Officer McNew found contraband on Mr. McAdams, the passenger. I intended to search the toolbox anyway. I was going to search it for weapons, stolen merchandise, or drugs. I asked Mr. McDaniel if he cared if I searched the locked toolbox. I had tried to open it and discovered it was locked. Mr. McDaniel told me where the key was. I got the keys and handed the key ring to him and he picked out the key to the toolbox and handed it to me.

Mr. McDaniel showed me the key to the toolbox after Mr. McAdams had been arrested by Officer McNew. I did not realize at the time I started to look in the toolbox that it was locked, but I usually look in toolboxes. I was going to search it, regardless of whether the passenger was detained. I had nothing to do with the pat-down of Mr. McAdams and did not see it. I did not know anything about it. I just saw what the officer brought over to show me he had found. I continued to search the vehicle and Officer McNew opened the silver box which was inside the tool box. There was a locked toolbox and then another locked box inside that toolbox.

I did not find any drugs on Mr. McDaniel. I asked who owned the contents of the toolbox and Mr. McDaniel said he did. The only drugs found before the search of the box inside the toolbox were the drugs on the person of Mr. McAdams, the passenger. (Emphasis added.)

Officer Brad McNew was working for the Damascus Police Department with Hartwick the night of April 26, 1997. Part of his abstracted testimony at the suppression hearing deserves study.

After Officer Hartwick stopped the vehicle, he asked the driver to step out and he advised me that he could smell marijuana. Officer...