State v. Sullivan, 340 Ark. 318

• Decision Date: 18 May 2000
• Citation: 340 Ark. 318,16 S.W.3d 551
• Court: Arkansas Supreme Court

340 Ark. 318

16 S.W.3d 551

STATE of Arkansas v Kenneth Andrew SULLIVAN

CR 99-1140

SUPREME COURT OF ARKANSAS

May 18, 2000, Decided

Mark Pryor, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellant.

No response.

W.H. "DUB" ARNOLD, Chief Justice. CORBIN, BROWN, and THORNTON, JJ., join. GLAZE, IMBER, and SMITH, JJ., would grant rehearing.

W.H. "DUB" ARNOLD

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

W.H. "DUB" ARNOLD, Chief Justice. The State has petitioned for rehearing in this case, contending that this court's opinion delivered on February 10, 2000, State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000), contained a significant error of law. The State argues that this court's analysis of the present case using the concept of "pretext" is contrary to the United States Supreme Court's opinion in Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996). The State presents us with the Whren case for the first time on rehearing and argues that under Whren, a police officer may arrest someone for a minor traffic violation, knowing full well that the real reason for the arrest is to enable a search of the vehicle for a suspected crime.

We do not read Whren as going as far as the State would have it. In Whren, the police officers observed youthful occupants at night in a vehicle with temporary license plates. The youths were acting suspiciously in a high crime area. When the vehicle did a U-turn and sped off at an unreasonable speed, the police officers gave chase and stopped the vehicle. One of the police officers approached the vehicle and saw two bags of crack cocaine in the driver's hands.

These facts are very different from those in the case before us. Here, the police officer stopped Sullivan for speeding, arrested him primarily because he had a roofing hatchet on the floor of his vehicle which had rusted into the carpet, and then conducted an inventory search following the arrest. As the trial court found in its ruling:

Following our hearing yesterday, I have gone over the testimony and looked at what I believe to be the law in that case, and it's going to be my decision in this particular instance that based on the testimony, specifically that the officer testified that he stopped the car based on a charge of suspicion of speeding -which I have no problem with the stop. I think that was … there was radar. I don't have any problem with that.

He testified that once he got him stopped, he recognized him as someone that he had seen intelligence on regarding narcotics, and he -- rather than write citations, he physically arrested him. And the weapons charge, I think, was added to that. And I don't believe that in this particular instance that the -- that that was appropriate, and I'm going to grant the defendant's motion to suppress the evidence seized as a result of that search.

The State argues that under Whren, the Supreme Court has determined that the ulterior motives of police officers are irrelevant so long as there is probable cause for the traffic stop. Admittedly, the decision in Whren is broadly written, but much of it isdicta. Nevertheless, we do not interpret Whren as blanket authority for pretextual arrests for purposes of a search in all cases. Rather, the reasonableness of the arrest and search must be governed by the facts of each case. For example, we do not believe that Whren goes so far as to sanction conduct where a police officer can trail a targeted vehicle with a driver merely suspected of criminal activity, wait for the driver to exceed the speed limit by one mile per hour, arrest the driver for speeding, and conduct a full-blown inventory search of the vehicle with impunity.

Several jurisdictions, after the Whren decision, have refused to give total authority to law enforcement for pretextual arrests and the resulting searches, either because of state constitutions or because the search and seizure was unreasonable.See, e.g., State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (Wash. 1999); State v. Varnado, 582 N.W.2d 886 (Minn. 1998); People v. Dickson, 690 N.Y.S.2d 390, 180 Misc. 2d 113 (1998); State v. Gonzalez-Gutierrez, 187 Ariz. 116, 927 P.2d 776 (Ariz. 1996). Further, one jurisdiction has questioned the ultimate absurdity of whether Whren was meant to sanction arrests and searches incident to a parking violation. See State v. Holmes, 569 N.W.2d 181 (Minn. 1997).

This court has cited Whren in two cases. See Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998); Burris v. State 330 Ark. 66, 954 S.W.2d 209 (1997). Neither case dealt with the issue of pretextual arrests but rather cited Whren for the proposition that probable cause of a traffic violation is all that is required for a police officer to make a stop. In fact, in Travis, we specifically noted that the argument of a pretextual arrest had not been made.

Here, the trial court found that the arrest was pretextual and made for the purpose of searching Sullivan's vehicle for evidence of a crime. Again, we do not believe that Whren disallows this. Moreover, even if we were to interpret Whren to give full rein to law enforcement to effect pretextual arrests for traffic violations, there is nothing that prevents this court from interpreting the U.S. Constitution more broadly than the United States Supreme Court, which has the effect of providing more rights. We arguably have done so with our Criminal Rules that provide more stringent requirements for nighttime searches than Court decisions. SeeArk. R. Crim. P. 13.2(c); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991).

In sum, we will not give carte blanche approval for all pretextual arrests for traffic violations, as the State would have us do. We draw a clear distinction between arresting a person with crack cocaine in his hands as was the case in Whren and effecting a pretextual arrest for purposes of a search, such as we have in the instant case. Surely that flies in the face of reasonableness, which is the essence of the Fourth Amendment. See State v. Holmes, supra. We will decide the reasonableness of the arrest and search on a case-by-case basis, as the Whren decision makes clear. For these reasons, we deny the State's petition for rehearing.

Denied.

CORBIN, BROWN, and THORNTON, JJ., join.

GLAZE, IMBER, and SMITH, JJ., would grant rehearing.

TOM GLAZE

TOM GLAZE, Justice, dissenting. The State petitioned for rehearing in this case, arguing that our decision rendered on February 10, 2000, State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000), contained a significant error of law in failing to mention Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996). It is true that our opinion did not discuss Whren, but only because that case was neither cited nor argued to this court. I agree with the majority court that the Whren decision is significant to our reaching a correct holding in the present case; thus, our court considers it now. 1

As our court set out in its original opinion, the evidence was indisputable that police officer Joe Taylor made a proper stop of Kenneth Sullivan's car because Sullivan was speeding. Sullivan also had no insurance, vehicle registration, or functional speedometer, and his car windows were improperly tinted. The officer additionally observed a hatchet on the driver's floorboard. The officer advised Sullivan that he was being placed under arrest for these infractions and for driving an unsafe car. He put Sullivan in the back of another officer's car and began inventorying Sullivan's vehicle. In the search, the officer found methamphetamine and marijuana. In making the inventory search, Taylor testified that he followed his department's policy and procedural manual. In these circumstances, Officer Taylor had probable cause to believe Sullivan committed a traffic offense at the time of the stop. That valid stop resulted in the discovery of other violations of the law that permitted Taylor to arrest Sullivan and inventory his car, where the officer found illegal drugs.

Recently, in Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998), our court upheld the stop of a defendant's truck for committing a traffic offense -- failing to display expiration-date stickers. After the stop, the officer discovered that the driver of the truck had a suspended driver's license, and the passenger, defendant, was a felon who also had no valid license. The officer had the truck towed. When the officer later opened the door of the truck, he found a rifle which led to the defendant's arrest for being a felon in possession of a firearm. At trial, the defendant argued that no probable cause existed for the officer to stop his truck because the officer wrongly believed the Texas license plate was required to display an expiration sticker. CitingBurris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997), and Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996), the Travis court rejected the defendant's argument and upheld the search of defendant's truck, holding that it is well settled that an officer may stop and detain a motorist where the officer has probable cause to believe a traffic violation had occurred. Furthermore, in reaching its decision, the Travis court repeated the rule in Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997),that, in assessing the existence of probable cause, our review is liberal rather than strict. To the same effect, see Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). In the present case, once the officer made a valid stop and arrested Sullivan for the numerous traffic violations, including driving an unsafe vehicle, the officer had the authority to perform an inventory of Sullivan's vehicle.

It has been suggested that the State's argument on rehearing is that a police officer may arrest someone for a minor traffic violation, knowing full well that the real reason for the arrest is to enable a search of the vehicle for a suspected crime. To the contrary, the State...