Muhammad v. State, CR

• Decision Date: 15 April 1999
• Docket Number: No. CR,CR
• Citation: 988 S.W.2d 17,337 Ark. 291
• Parties: Karriem MUHAMMAD, Appellant, v. STATE of Arkansas, Appellee. 99-31.
• Court: Arkansas Supreme Court

Page 17

988 S.W.2d 17

337 Ark. 291

Karriem MUHAMMAD, Appellant, v. STATE of Arkansas, Appellee.

No. CR 99-31.

Supreme Court of Arkansas.

April 15, 1999.

Neil & Goodson, by: John C. Goodson, Texarkana, for appellant.

Mark Pryor, Att'y Gen., by: C. Joseph Cordi, Jr., Ass't Att'y Gen., Little Rock, for appellee.

LAVENSKI R. SMITH, Justice.

This is a search and seizure case. It concerns the appropriateness of a police "pat-down" search of a driver stopped for a traffic violation who, though only given a warning citation, consents to the search of his vehicle. Appellant, Karriem Muhammad ("Muhammad"), appeals the denial of his motion to suppress evidence. Muhammad entered a conditional guilty plea to cocaine charges stemming from discovery of the controlled substance on his person as a result of the "pat-down" search. Muhammad contends that the trial court should have excluded evidence of the controlled substance because the police had no authority to perform the search in that there was no reasonable, articulable suspicion of criminal activity. We disagree and affirm.

Facts

On March 21, 1996, Arkansas State Trooper Jeffrey L. Thomas ("Thomas") stopped Muhammad's vehicle on Interstate 30 outside of Texarkana heading east towards Little Rock. Thomas initiated the stop after observing Muhammad following an eighteen-wheel tractor-trailer rig too closely. At the suppression hearing, Thomas testified that Muhammad, dressed in slacks and a loose pullover knit shirt, was "nervous," "his lips were trembling," and he stood and sat very erect throughout the encounter. Thomas initially questioned Muhammad about where he was traveling, and Muhammad answered that he was going to Little Rock for his father's birthday. Thomas asked how old his father was, and Muhammad apparently was unable to give an exact age, although he responded that his father was "sixty something." Pursuant to standard police procedure, Thomas ran a check through the National Crime Information Computer ("NCIC") and the Interstate Identification Index on Muhammad's license and discovered that Muhammad was a convicted felon currently on parole. Muhammad's prior felonies included convictions for aggravated robbery and possession of illegal drugs.

After Thomas ran the search, he decided to give Muhammad a warning citation instead of a ticket. Thereafter, Thomas asked Muhammad to get into his cruiser to avoid the road noise and requested permission to search Muhammad's car. Thomas presented Muhammad with a consent form to complete to allow the search. Muhammad signed the form, thus giving his permission for the search. At the suppression hearing, Thomas testified that he based his decision to search the car on Muhammad's nervousness and his prior criminal history. Thomas specifically noted, however, that he did not have probable cause to search Muhammad's car, but that he thought he might find illegal drugs in the car. Thomas then called for back-up so that another Trooper would be present while he conducted the search.

While waiting for the back-up unit, Thomas directed Muhammad to step out of and to the front of Thomas's cruiser, and assume the position to be frisk-searched. Muhammad did so, and Thomas began a "pat-down" search of Muhammad's outer clothing. Upon reaching Muhammad's belt-line, Thomas felt the corner of some object which Thomas believed to be a firearm. Muhammad attempted to remove Thomas's hand from the object, and Thomas then ordered Muhammad to place his hands behind his head. Thomas retrieved the object, which appeared to be a brick of compressed material wrapped in duct tape. Later examination determined it to be illegal drugs. Thomas found no weapon.

On December 18, 1996, Muhammad filed a Motion to Suppress the evidence obtained in the "pat-down" search, contending that the search was unlawful. Miller County Circuit Court held a suppression hearing on September 9, 1997. Officer Thomas was the sole witness. At the conclusion of the hearing, the circuit judge denied Muhammad's motion to suppress, and Muhammad subsequently entered a conditional guilty plea pending the outcome of his appeal of the denial of his motion to suppress. The trial court entered a judgment and commitment order on September 15, 1997, sentencing Muhammad to forty years in prison, finding him guilty of manufacture, delivery and possession of a controlled substance. Muhammad appealed to the Arkansas Court of Appeals on October 15, 1997, and the appellate court affirmed the trial court's denial of the motion to suppress in an opinion on December 23, 1998. Thereafter, Muhammad petitioned this Court for review of the Court of Appeals' decision. We granted review. In his petition, Muhammad specifically argues that the Court of Appeals' decision is contrary to that court's and the Arkansas Supreme Court's prior decisions regarding "pat-down" searches during traffic stops.

Standard of Review

On a Petition for Review, this Court reviews the case as if the appeal had originally been filed in this Court. Brunson v. State, 327 Ark. 567, 570, 940 S.W.2d 440 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). On review of a trial court's denial of a motion to suppress, this Court makes an independent examination based on the totality of the circumstances, and will reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 71, 954 S.W.2d 209 (1997). In making that decision, the Court reviews the evidence in the light most favorable to the State. Id.

In his Petition for Review, Muhammad asserts that the Court of Appeals disregarded both its own and our holdings in Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), Frette v. State, 58 Ark.App. 81, 947 S.W.2d 15 (1997), and Brunson v. State, 54 Ark.App. 248, 925 S.W.2d 434 (1996). It should be noted that both Brunson and Frette, which were reversed and remanded by the Court of Appeals, were reversed again by this Court upon the State's Petitions for Review, and the trial courts' decisions reinstated. As such, Muhammad's reliance on the holdings of those Court of Appeals decisions is misplaced.

This case involves the interaction of a few basic facts with several of our Arkansas Rules of Criminal Procedure, Arkansas case law and United States Supreme Court cases regarding the Fourth Amendment's protections against unlawful searches. There is no dispute in this case about the State Trooper's justification for pulling Muhammad over for following the tractor-trailer rig too closely. Clearly, Thomas had the authority to do so. See, Burris, supra, and Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The crucial issue is whether, after Thomas issued the warning ticket, he had a sufficient basis to conduct the "pat-down" search consistent with the Fourth Amendment.

The Fourth Amendment of the United States Constitution guarantees that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. 4. This is a fundamental and precious right that the courts must protect. However, as the United States Supreme Court has indicated, this provision does not forbid all searches and seizures, but only "unreasonable searches and seizures." Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), quoting Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). In Terry, a police officer was patrolling downtown Cleveland, Ohio, when he came upon three men standing on a street corner. The officer testified that he watched the men for some time, and found their actions suspicious. As such, he approached the men on the street and began questioning them. When his inquiries were met with mumbled responses, the officer quickly spun Terry around and began a "pat-down" search of Terry's outside clothing, finding a revolver in a pocket. Ultimately, the officer found another gun on another man's person. He arrested the men after taking them to the station.

In analyzing the search in which the officer initially had no probable cause to arrest the defendants, the United States Supreme Court noted that "a search of weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation." Terry, supra, 392 U.S. at 25-26, 88 S.Ct. 1868. In making this statement, the Supreme Court upheld the lawfulness of the search based on the need to allow an officer to search a person if the officer reasonably fears that the suspect is armed and dangerous, and such a search is necessary to protect himself and others. The standard used to determine reasonableness in such a situation is "whether a reasonable prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id., 392 U.S. at 27, 88 S.Ct. 1868. In making such a determination, the Terry court noted that "specific reasonable inferences" drawn from the facts in light of the officer's experience may be used; however, "inchoate and unparticularized suspicion or 'hunch' " will not suffice. Id.

Since Terry, the Arkansas Legislature has enacted statutes and this Court has promulgated rules enforcing Terry's teachings to create a working web of flexible responses for stop and search situations in this state. The starting point for this analysis is two Arkansas Rules of Criminal Procedure, Rule 3.1 and Rule 3.4. Rule 3.1 details two situations when a police officer may stop and detain a 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...." ¹ In connection with Rule 3.1, Rule 3.4 allows that officer to conduct a search of the detained person's outside...