Stewart v. State, CA

• Decision Date: 15 October 1997
• Docket Number: No. CA,CA
• Citation: 59 Ark.App. 77,953 S.W.2d 599
• Parties: Kathy STEWART, Appellant, v. STATE of Arkansas, Appellee. CR 97-236.
• Court: Arkansas Court of Appeals

Page 599

953 S.W.2d 599

59 Ark.App. 77

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

No. CA CR 97-236.

Court of Appeals of Arkansas,

Division III.

Oct. 15, 1997.

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

Winston Bryant, Attorney General, Little Rock, for Appellee.

ROBBINS, Chief Judge.

Appellant Kathy Stewart appeals her conviction after a bench trial for possession of a controlled substance, cocaine, for which she was sentenced to three years' probation, ordered to pay a $250 fine plus court costs, and given thirty days in jail. Her sole point on appeal is that the trial court erred in declining to suppress the evidence seized from her person by the police officer who stopped her in the early morning of December 4, 1995. We agree with appellant and reverse her conviction.

The events leading up to appellant's arrest are as follows. A Little Rock police officer was patrolling what he characterized as a "high drug traffic" area when he observed appellant standing on the corner of 27th Street and Broadway at approximately 1:45 a.m. This street corner was in front of her residence at 2715 Broadway. She was wearing a jacket, and when the officer approached her he asked her to remove her hands from her pockets. She removed them, but according to the officer's testimony, she continued to try to put her hand back into her right jacket pocket. At that point the officer determined he would do a "pat-down safety search." Upon reaching into that pocket, he found thirty-five one dollar bills, a one-hundred dollar bill, and a small matchbox. He opened the matchbox and found two rocks that appeared to be crack cocaine.

When the public defender asked the officer at the bench trial what criminal activity aroused his suspicion about appellant when he approached her, the following exchange took place:

"I felt that she might have been engaged in drug trafficking."

"Had you seen her do that?"

"Given the area, I've made numerous arrests in that area. Given the time of day and where she was standing--"

"But did you see Ms. Stewart engage in any of those activities other than standing on the corner?"

"I felt that by being at that area, she was in engaged in that activity."

"Did you see her talk to anyone, deliver any substance to anyone or do anything of that nature?

"No, I did not."

Appellant took the stand in her own defense. She testified that she was standing out in front of her residence. The police drove up to her, and she talked to the two officers. When they asked what was in her pockets, she told them that she had money from her paycheck, matches, and cigarettes. She approached the police car as they requested, and the police conducted a search of her outer clothing. She explained that the drugs in the matchbox belonged to her cousin who had borrowed money and her jacket earlier that evening.

The State first argues that we should not reach the merits of appellant's appeal because she failed to preserve the issue for review. Specifically, it asserts that although appellant filed a motion to suppress the cocaine based upon an illegal search and seizure, brought it to the attention of the trial judge at the commencement of the bench trial, and renewed her motion at the close of the trial, she failed to object to the admission of the cocaine upon the same search and seizure argument when it was introduced through the testimony of the chain-of-custody officer.

The State cites Beck v. State, 12 Ark.App. 341, 676 S.W.2d 740 (1984), for this proposition, but in that case the appellant argued for the first time on appeal that the trial court should have excluded evidence based upon an illegal arrest. Such is not the case before us now; it cannot seriously be argued that this issue is being raised for the first time on appeal. The State also cites Rideout v. State, 22 Ark.App. 209, 737 S.W.2d 667 (1987), but that case involved an appellant who neither moved to suppress evidence nor objected to the evidence when it was admitted. Again, this is anything but true in the case before us today. The State presents no compelling authority that would require us to decline review of appellant's argument.

We recognize that there are cases stating that, with regard to motions in limine, one must contemporaneously object to the evidence if the court initially declines to rule on the motion. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996); Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). However, those cases state that rule in the context of jury trials.

Indeed, we believe that appellant was not required in this case to object again as the State presented its version of the facts to the judge. At the beginning of the bench trial, the public defender stated that a motion to suppress the evidence seized had been filed and asked if that issue could be taken up during the course of the bench trial testimony. The trial judge responded, "Sure. Sure. Let's do that." The prosecutor said nothing, acquiescing in this decision. After the prosecutor ended her examination regarding the chain-of-custody of the cocaine and rested the State's case, the public defender renewed the motion to suppress the evidence. She renewed the motion at the close of appellant's case, and the trial judge denied it "for the same reasons I stated earlier." Those reasons are not found in the record, but it is clear the motion was denied, and the trial judge found appellant guilty.

On the facts of this case, we cannot say that appellant failed to preserve this issue for our review. We emphasize that this was a bench trial, and it was the trial judge who would both find the facts and rule on evidentiary questions. With an agreement to take up the issue during the course of trial and with the trial judge as the determiner of all facts and rulings, we cannot say appellant failed to preserve this issue for appeal. For this reason we reach the merits of appellant's argument.

In reviewing a trial court's denial of a motion to suppress, we make an independent determination based upon the totality of the circumstances. We reverse only if the ruling is clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996).

Appellant argues that the State could not stop and detain her based upon Rule 3.1 of the Arkansas Rules of Criminal Procedure. We agree. Rule 3.1 was the primary basis upon which the State argued that the initial stop was valid. Rule 3.1 states in pertinent part:

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 identification of the person or to determine the lawfulness of his conduct.

"Reasonably suspects" means having a suspicion based on facts or circumstances that of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than bare suspicion; a suspicion that is reasonable as opposed to imaginary or conjectural suspicion. Ark. R.Crim. P. 2.1. Based upon the testimony elicited from the police officer, he had nothing more than "feelings" that appellant "might" be engaged in drug trafficking.

The State alternatively asserts that the police officer correctly stopped to question appellant under the authority found in Ark. R.Crim. P. 2.2, which provides that an officer may ask any person to furnish information or cooperate in the investigation of or prevention of crime. Although this was never urged as a basis to sustain the stop at the trial level, we recognize that we may affirm a trial court if it reached the right result for the wrong reason. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993). The Arkansas...