Stewart v. State

• Decision Date: 05 March 1998
• Docket Number: No. CR,CR
• Citation: 332 Ark. 138,964 S.W.2d 793
• Parties: Kathy STEWART, Appellant, v. STATE of Arkansas, Appellee. 97-1276.
• Court: Arkansas Supreme Court

Page 793

964 S.W.2d 793

332 Ark. 138

Kathy STEWART, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-1276.

Supreme Court of Arkansas.

March 5, 1998.

William R. Simpson, Jr., Public Defender, Tammy Harris, Deborah R. Sallings, Deputy Public Defenders, Little Rock, for Appellant.

Winston, Bryant, Atty. Gen., C. Joseph Cordi, Jr., Asst. Atty. Gen., Little Rock, for Appellee.

IMBER, Justice.

At the conclusion of a bench trial, the appellant, Kathy Stewart, was convicted of possession of a controlled substance in violation of Ark.Code Ann. § 5-64-401 (Repl.1997). On appeal, Stewart challenges the trial court's denial of her motion to suppress the evidence that was seized from her coat pocket. We reverse and remand.

On December 4, 1995, at approximately 1:45 a.m., Officer Spangler was patrolling an area of Little Rock that was known to him to have "high drug traffic." As Officer Spangler approached the intersection of 27th Street and Broadway, he noticed Kathy Stewart standing on the corner outside of her home. Based upon the time of day, where she was standing, and the fact that he had previously made several arrests in that area, Officer Spangler believed that Stewart might be engaged in drug trafficking.

Officer Spangler pulled up to where Stewart was standing and asked her what she was doing. Stewart answered that she was about to go for a walk. Officer Spangler asked Stewart to remove her hands from her coat pocket and to walk towards his patrol car. As Stewart approached Officer Spangler's vehicle, she placed her right hand inside of her right coat pocket two or three times despite Officer Spangler's repeated requests to keep both of her hands out of her jacket. Stewart's behavior caused Officer Spangler to believe that she might have a weapon in her coat pocket.

When Stewart reached the police car, Officer Spangler asked her to place both hands on the car, and he proceeded to perform a pat down search for weapons. After feeling a large bulge in Stewart's right coat pocket, Officer Spangler reached into Stewart's pocket and retrieved thirty-five one dollar bills, a one hundred dollar bill, and a matchbox. Officer Spangler then opened the matchbox and discovered two rocks of crack cocaine. Stewart was subsequently arrested and charged with possession of a controlled substance.

Prior to trial, Stewart filed a motion to suppress the drugs seized from her pocket because the warrantless stop was made without "a reasonable and articulable suspicion that [she] was armed and dangerous nor with probable cause to believe that [she] had committed a felony." At the beginning of the bench trial, Stewart reminded the court of her pending motion to suppress, and asked the court to "take the matter up" at the same time that it considered whether she was guilty of possession of a controlled substance. The trial judge granted Stewart's request.

The State proceeded to present its case-in-chief against Stewart. When the State offered the drugs into evidence, Stewart objected on the basis that the State had failed to establish a proper chain of custody, but she did not renew her constitutional challenges to the stop and subsequent search. After the State established a proper chain of custody, the drugs were admitted into evidence. The State presented no further evidence and rested its case. Stewart immediately followed with her argument that the drugs should have been suppressed due to the unconstitutional stop and search. The same argument was renewed by Stewart at the conclusion of the trial. The court denied Stewart's motion to suppress and found her guilty of possession of a controlled substance.

In Stewart v. State, 59 Ark.App. 77, 953 S.W.2d 599 (1997), the Arkansas Court of Appeals reversed Stewart's conviction and remanded for a new trial because it concluded that the police officer exceeded the permissible scope of a pat-down search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), when he removed the matchbox from Stewart's pocket and examined the contents. We granted the State's petition to review, and decide the case as if the appeal was originally filed in this court. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997); Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997).

I. CONTEMPORANEOUS OBJECTION

On appeal, the issue is whether the trial court erred when it denied Stewart's motion to suppress the drugs seized from her coat pocket. Before reaching the merits of Stewart's argument, we must first decide whether she has properly preserved this issue for appeal. The State contends that she has not because she failed to make a contemporaneous objection when the drugs were offered into evidence. Hence, we are asked for the first time to decide whether a contemporaneous objection is required during a bench trial when the previously filed motion to suppress has been renewed at the beginning of the trial.

It is well settled that in order to preserve an issue for appeal the appellant must make an objection contemporaneously with the alleged error. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997). In State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994), we explained that the reason for the contemporaneous-objection rule is to give the trial court an opportunity to fully understand the reason for the disagreement with its proposed action before it renders a ruling. If, however, the motion to suppress is orally renewed at the beginning of a bench trial, and the trial court agrees to consider the motion to suppress at the same time it considers the evidence, there is no risk that the court will be unfamiliar with the nature of the objection. Under these circumstances, we hold that a contemporaneous objection is not required in order to preserve the issue for appeal.

In reaching this conclusion, we are not unmindful of two recent cases where we held that a contemporaneous objection is required in order to preserve for appeal issues that were raised in a motion in limine. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996); Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). We, however, find these cases distinguishable because they involved jury trials, instead of a bench trial as in this case. If a contemporaneous objection is not made at the time the evidence is offered during a jury trial, the proverbial bell will have been rung and the jury prejudiced. However, when the contested evidence is mentioned during a bench trial, there is no risk of prejudice because a trial judge is able to consider evidence only for its proper purpose. Similarly, in Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995), we held that litigants are not required to make a motion challenging the sufficiency of the evidence during cases tried before the court instead of a jury.

For these reasons, we hold that during a bench trial it is not necessary to make a contemporaneous objection when the contested evidence is offered if the appellant has renewed the previously filed motion to suppress at the beginning of the trial, and the court agrees to consider the motion simultaneously with the evidence on the merits. Accordingly, we hold that Stewart has properly preserved her constitutional argument for appeal.

II. CONSTITUTIONALITY OF THE INITIAL ENCOUNTER

As to the merits, Stewart contends that the trial court erred when it denied Stewart's motion to suppress the drugs seized from her coat pocket. When reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the trial court's ruling is clearly against the preponderance of the evidence. In making this determination, we view the evidence in the light most favorable to the State. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997), cert. denied, --- U.S. ----, 117 S.Ct. 2411, 138 L.Ed.2d 176 (1997).

In order to resolve this issue, we must first decide whether the police action in the initial encounter between Officer Spangler and Stewart was permissible under the Constitution and our Rules of Criminal Procedure. In Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998), we recently explained that there are three types of encounters between the police and private citizens:

The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a "seizure" within the meaning of the fourth amendment. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an "articulable suspicion" that the person has committed or is about to commit a crime. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause.

(citing Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990); U.S. v. Hernandez, 854 F.2d 295 (8th Cir.1988)).

The State first contends that the initial encounter between Officer Spangler and Stewart was a permissible "stop" or "seizure" under Ark. R.Crim. P. 3.1, which provides that:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any 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, if such action is reasonably necessary either to obtain or verify the...