Phillips v. State, CA

• Decision Date: 20 March 1996
• Docket Number: No. CA,CA
• Citation: Phillips v. State, 918 S.W.2d 721, 53 Ark.App. 36 (Ark. App. 1996)
• Parties: James Eldridge PHILLIPS, Appellant, v. STATE of Arkansas, Appellee. CR 95-379.
• Court: Arkansas Court of Appeals

Page 721

918 S.W.2d 721

53 Ark.App. 36

James Eldridge PHILLIPS, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 95-379.

Court of Appeals of Arkansas Division III.

March 20, 1996.

Appeal from the White County Circuit Court, No. CR 94-77; Hon. Robert Edwards, Circuit Judge.

Robert Meurer, Searcy, for Appellant.

Joseph V. Svoboda, Asst. Atty. General, Little Rock, for Appellee.

STROUD, Judge.

James Phillips was charged with possession of a controlled substance, methamphetamine. After a pretrial motion to suppress evidence was denied, Phillips entered a conditional plea of guilty under Ark.R.Crim.P. 24.3(b). He was sentenced to three years imprisonment with eighteen months suspended.

Phillip Hydron, a White County Deputy Sheriff, testified at the suppression hearing. He stated that on November 25, 1993, he was on patrol near Higginson when he saw a van stopped in the middle of the road. He said that the van appeared to have a problem, so he stopped to investigate. When appellant rolled down the driver's side window, Officer Hydron smelled marijuana.

Officer Hydron asked appellant for his driver's license, and appellant began flipping through his billfold to retrieve it. Hydron said that he saw a plastic package rolled up in appellant's wallet. When asked what was in the package, appellant shrugged his shoulders. Then the officer asked about the smell of marijuana and appellant said that he and his buddy had smoked some earlier that day. Officer Hydron asked for the plastic package, and appellant gave it to him. There was what appeared to be marijuana inside the package. Hydron read appellant his Miranda rights and arrested him for possession of a controlled substance.

After he placed appellant in the patrol car, Officer Hydron conducted a search of the van. In a jacket, he found a pipe used for smoking marijuana. In another jacket, he found a syringe, a spoon, some cotton, and a white plastic package filled with white powder.

At the detention center, appellant was again advised of his rights. Appellant then gave a statement in which he admitted that the marijuana and the drug paraphernalia were his. He also admitted that the white powder was his and that it was methamphetamine.

Appellant argues that the trial court erred in refusing to grant his motion to suppress the evidence discovered by the officer because he had not been lawfully detained or arrested prior to the discovery of the marijuana in his wallet. He also argues that the evidence should have been suppressed because the searches of both his wallet and his van were unlawful.

In reviewing a trial court's denial of a motion to suppress evidence, we make an independent determination based on the totality of the circumstances and reverse the trial court's ruling only if it is clearly against the preponderance of the evidence. Roark v. State, 46 Ark.App. 49, 876 S.W.2d 596 (1994); Bond v. State, 45 Ark.App. 177, 873 S.W.2d 569 (1994).

We first address appellant's contention that he was illegally detained by Officer Hydron. Appellant argues that Ark. Code Ann. § 16-81-204(a) (1987), Ark.R.Crim.P. 3.1, and the fourth amendment require that an officer must reasonably suspect that a person is committing, has committed, or is about to commit a crime before he can detain that person. However, not all personal intercourse between policemen and citizens involves "seizures" of persons under the fourth amendment. Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990). Likewise, not all personal intercourse between policemen and citizens involves a detention under Ark. Code Ann. § 16-81-204(a) (1987) and Ark.R.Crim.P. 3.1. See Thompson, supra; Adams v. State, 26 Ark.App. 15, 758 S.W.2d 709 (1988); and Ark.R.Crim.P. 2.2(a).

Although Officer Hydron testified that he would have been suspicious if appellant had attempted to leave after Hydron stopped and walked toward appellant's van and that he would still have wanted to question him, the officer's subjective intention is not dispositive of whether there has been a seizure. Whether a person has been seized within the meaning of the fourth amendment depends on whether, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Smith v. State, 321 Ark. 580, 906 S.W.2d 302 (1995) (citing United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, reh'g denied, 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980)). We find this reasoning persuasive and hold that this is also the standard to determine whether a person has been detained under Ark. Code Ann. § 16-81-204(a) (1987) and Ark.R.Crim.P. 3.1.

The result in this case is controlled by the holding in Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990), in which the Arkansas Supreme Court found that it was not a seizure under the fourth amendment for a police officer to approach a car parked in a public place to determine whether there was anything wrong. Just as in Thompson, supra, there is no evidence in the record indicating that the officer restrained the liberty of the appellant by means of physical force or a show of authority. Thus, there was no "seizure" under the fourth amendment and no detention under Ark. Code Ann. § 16-81-204(a) (1987) and Ark.R.Crim.P. 3.1 until after the van window was rolled down and Officer Hydron smelled marijuana.

Once appellant had rolled down the window and Officer Hydron smelled marijuana, the officer had a reasonable suspicion that the occupants of the van were committing, had committed, or were about to commit a crime. This authorized the officer to detain them for a reasonable time under Ark.R.Crim.P. 3.1 in order to verify their identification or determine the lawfulness of their conduct. Adams, supra. Thus, appellant's claim that he was illegally detained is without merit.

Appellant's second contention is that the trial court should have suppressed the evidence because the officer did not articulate any of the factors contained in Ark. Code Ann. §...