Pickering v. State

• Citation: 412 S.W.3d 143,2012 Ark. 280
• Decision Date: 21 June 2012
• Docket Number: No. CR 12–19.,CR 12–19.
• Court: Supreme Court of Arkansas
• Parties: Mackenzie PICKERING, Appellant v. STATE of Arkansas, Appellee.

2012 Ark. 280

412 S.W.3d 143

Mackenzie PICKERING, Appellant

v.STATE of Arkansas, Appellee.

No. CR 12–19.

Supreme Court of Arkansas.

June 21, 2012.

Hugh R. Laws, Laws Law Firm, P.A., Russellville, for Appellant.

Dustin McDaniel, Atty. Gen., Christian Harris, Asst. Atty. Gen., for Appellee.

JIM GUNTER, Justice.

Appellant was found guilty of underage driving under the influence and now appeals the denial of his motion to suppress the results of his breathalyzer test. On appeal, he argues that the arresting officer was acting outside of his territorial jurisdiction when he transported appellant to a different county to perform the breathalyzer test and that the test results were thus unlawfully obtained. We accepted certification of this case because it involves an issue of first impression and needing clarification; therefore, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1–2(d). We affirm the denial of the motion to suppress.

On August 8, 2010, Deputy Shawn Harris of the Pope County Sheriff's Office initiated a traffic stop on a vehicle driven by appellant after observing the vehicle travel onto the shoulder and cross the center line. Harris detected an odor of intoxicants on appellant's breath and observed that appellant's eyes were bloodshot and slightly glassy. After performing a series of field sobriety tests, Harris placed appellant, who was nineteen years old at the time, under arrest for suspicion of underage driving under the influence (DUI). Harris then transported appellant to the Dardanelle Police Department, in Yell County, where Harris read appellant his DUI statement of rights. Appellant agreed to take a breathalyzer test, and the result revealed a blood-alcohol level of .065.¹ Appellant was later found guilty of underage DUI in the Pope County District Court and timely appealed to the Pope County Circuit Court.

On May 24, 2011, appellant filed a motion to suppress. In the motion, appellant argued that after his arrest, he was transported from Pope County to Yell County, which was outside of Harris's jurisdiction. Appellant argued that he was illegally detained in Yell County and asked the court to suppress all evidence, namely the results of the breathalyzer test, stemming from this illegal detention. In response, the State argued that Arkansas law did not prevent a certified law-enforcement officer from transporting a lawfully arrested person outside the officer's territorial jurisdiction to obtain evidence, or in the alternative, that appellant had waived any argument regarding the seizure of this evidence by consenting to the breathalyzer test.

A hearing on the motion to suppress was held on July 18, 2011. At the hearing, Harris explained that he transported appellant to the Dardanelle Police Department because he was not certified to operate the new blood-alcohol content (BAC) analysis machine, the BAC Intoxilyzer, which had been installed at the Pope County Sheriff's Office and the Russellville Police Department. Harris testified that these were the only two BAC analysis machines located in Pope County, and because he had only recently returned from medical leave, he had not yet been certified to operate the machines. Harris also explained that at the time of the arrest, which was approximately 2:33 a.m., there was only one other officer working, who was busy on another call, so there was no other option but to transport appellant to another county to conduct the BAC test. Harris testified that once he and appellant arrived at the Dardanelle Police Department, he read appellant his DUI statement of rights, appellant understood his rights, and appellant agreed to the test.

On cross-examination, Harris admitted that he had not checked with the Russellville Police Department to see whether it had an officer available that could administer the BAC test to appellant. He also agreed that St. Mary's Hospital, which is in Pope County, could have performed a blood or urine test and that a urine sample could have been taken and sent to the State Crime Lab for testing. But Harris clarified that the standard policy is to use a BAC machine.

After hearing arguments from counsel, the court took the matter under advisement. In an order filed July 26, 2011, the court denied the motion to suppress and explained that “Deputy Harris was justified under these circumstances in transporting Defendant out of his jurisdiction and did not lose custody. The test had to be given without delay and in accordance with Health Department regulations.” Thereafter, on September 12, 2011, a bench trial was held, at which appellant was found guilty of underage DUI. In a judgment filed September 14, 2011, appellant was sentenced to pay costs of $300, to pay a fine of $250, to perform twenty hours of community service, and to attend an alcohol-safety program for underage drivers. Appellant filed a timely notice of appeal on October 11, 2011.

On appeal, appellant contends that the circuit court erred in denying his motion to suppress. In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. We defer to the superiority of the circuit judge to evaluate the credibility of witnesses who testify at a suppression hearing. Montgomery v. State, 367 Ark. 485, 241 S.W.3d 753 (2006).

The Fourth Amendment provides that “[t]he 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. V. The United States Supreme Court has held that the compulsory administration of a blood test is subject to the constraints of the Fourth Amendment, see Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and has further held that “subjecting a person to a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis, implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search.” Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 616–17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (internal citations omitted).

The issue in this case is whether the breathalyzer test administered by Deputy Harris, outside of his territorial jurisdiction, was an unlawful search under the Fourth Amendment. The authority of municipal corporations to exercise powers beyond their territorial limits must be derived from state statute, and the Arkansas General Assembly has codified four instances in which local police officers are authorized to act outside their territorial jurisdiction: (1) “fresh pursuit” cases, seeArk.Code Ann. § 16–81–301 (Repl.2005); (2) when the officer has a warrant for arrest, seeArk.Code Ann. § 16–81–105 (Repl.2005); (3) when a local law enforcement agency requests an outside officer to come into the local jurisdiction, and the outside officer is from an agency that has a written policy regulating its officers when they act outside their jurisdiction, seeArk.Code Ann. § 16–81–106(c)(3)–(4) (Supp.2011); (4) when a county sheriff requests that a peace officer from a contiguous county come into that sheriff's county and investigate and make arrests for violations of drug laws, seeArk.Code Ann. § 5–64–705 (Repl.2005). See also Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990).

In the present case, appellant contends that none of these instances are applicable, that Deputy Harris's jurisdiction ended when he took appellant out of Pope County and into Yell County, that his subsequent detention in Yell County was unlawful, and that the evidence obtained during that unlawful detention should have been suppressed. In support, appellant cites to Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), which makes clear that the Fourth Amendment applies to both “arrests” and “investigatory detentions.” Id. at 727, 89 S.Ct. 1394. The relevant facts from Davis are as follows:

[A] rape occurred on the evening of December 2, 1965, at the victim's home in Meridian, Mississippi. The victim could give no better description of her assailant than that he was a Negro youth. Finger and palm prints found on the sill and borders of the window through which the assailant apparently entered the victim's home constituted the only other lead available at the outset of the police investigation. Beginning on December 3, and for a period of about 10 days, the Meridian police, without warrants, took at least 24 Negro youths to police headquarters where they were questioned briefly, fingerprinted, and then released without charge. The police also interrogated 40 or 50 other Negro youths either at police headquarters, at school, or on the street. Petitioner, a 14–year–old youth who had occasionally worked for the victim as a yardboy, was brought in on December 3 and released after being fingerprinted and routinely questioned. Between December 3 and December 7, he was interrogated by the police on several occasions—sometimes in his home or in a car, other times at police headquarters. This questioning apparently related primarily to investigation of other potential suspects.

....

On December 12, the police drove petitioner 90 miles to the city of Jackson and confined him overnight in the Jackson jail. The State conceded on oral argument in this Court that there was neither a warrant nor probable cause for...