Stout v. State
| Decision Date | 22 May 1995 |
| Docket Number | No. CR94-1276,CR94-1276 |
| Parties | Mark Thomas STOUT, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
A. Wayne Davis, Steven E. Cauley, Little Rock, for appellant.
David R. Raupp, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Mark Stout was driving his sister's hatchback station wagon on Interstate 30 near Arkadelphia when Deputy Sheriff Terry Palmer stopped him for crossing the center line of the highway. Stout rolled down the window by the driver's seat and handed Palmer his driver's license. Palmer smelled alcohol and asked Stout how much he had to drink. Stout replied "a beer or two since [he] had been in Texas." Stout explained that he had been in Texas visiting for a week or two and was on his way back to Wisconsin. Palmer asked Stout to get out of the station wagon and take some field sobriety tests. Stout got out and took three tests. Palmer determined that Stout was not under the influence of intoxicants and issued a warning ticket for crossing the center line. At this time Stout, who was standing near the rear of the hatchback, was free to leave.
Palmer noticed that there was no baggage or clothing inside the station wagon and wondered about the truth of Stout's statement that he had been visiting in Texas for a week or two. As a result, he asked Stout if he had any contraband in the vehicle. Stout replied that he did not. Palmer asked if he and another deputy sheriff could search the vehicle. Stout said that they could. Although the record does not show the length of this conversation, it appears from all of the testimony that it occurred almost immediately after Palmer handed Stout the warning ticket, and Stout makes no argument that Palmer "detained" him unduly after a legitimate stop for an unauthorized warrantless search. See United States v. Ramos, 20 F.3d 348 (8th Cir.1994). Palmer filled out a consent to search form, but Stout refused to sign it. Stout told Palmer that he could look in the vehicle from the outside. Palmer looked through the driver's window and saw a package of cigarettes on the front seat. He noticed that inside the cellophane on the pack was "what looked to me as a marijuana cigarette, what we call a roach." Palmer opened the door, took the cigarette butt, smelled it, and determined that it was a marijuana cigarette. At that time he arrested Stout, handcuffed him, and had him stand on the side of the highway. Palmer and the other deputy then conducted a search of the hatchback station wagon. In the hatchback area, there is a flap on the floor that covers the spare tire. Under the flap, and inside the spare tire compartment, Palmer found a square blue metal container. Inside it were packages wrapped in gray duct tape that contained 10.6 pounds of marijuana.
Stout was subsequently charged with possession of a controlled substance with intent to deliver. He filed a motion to suppress the evidence seized, both the cigarette roach and the 10.6 pounds of marijuana, on the grounds that it was illegally seized under Article 2, section 15 of the Constitution of Arkansas and Rule 12.4 of the Arkansas Rules of Criminal Procedure. He additionally made a Fourth Amendment argument. The trial court denied the motion to suppress because the deputy sheriff had probable cause to make the initial stop for crossing the center line and the marijuana roach was in plain view; consequently, that seizure was valid. The trial court further reasoned that after Stout was lawfully arrested for possession of the marijuana cigarette, the subsequent search of the inside of the hatchback was valid as incident to the arrest for possession of the marijuana roach. We affirm.
Stout argues that the trial court erred in construing Article 2, section 15 of the Constitution of Arkansas and the Fourth and Fourteenth Amendments to the Constitution of the United States in refusing to suppress the evidence of the 10.6 pounds of marijuana found in the hatchback area of the vehicle. His arguments are based on the fact the officer had no probable cause to believe the marijuana was in the hatchback area of the car. The arguments are without merit. Once Stout was lawfully arrested, the officers were justified in making a contemporaneous search of the interior of the vehicle.
In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court provided a bright line rule for automobile searches incident to lawful arrest. The Court acknowledged "that a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area." Id. at 457, 101 S.Ct. at 2862. Such searches are justified because of the need to remove any weapons that the arrestee might use to resist or escape, and to prevent the concealment or destruction of evidence. Id.; see also Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The scope of the search must be strictly tied to and justified by the circumstances. Id.; see also Chimel, 395 U.S. at 762, 89 S.Ct. at 2039; Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968).
The Court in Belton stated that it recognized that Chimel and other cases had not provided a workable definition of "the area within the immediate control of the arrestee" when the area arguably includes the interior of the automobile that the arrestee occupied just prior to arrest. Belton, 453 U.S. at 460, 101 S.Ct. at 2864. The Court held that when police have made a lawful custodial arrest of the occupant of an automobile, they may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile. Id. Containers found within the passenger compartment of the car may be searched whether they are open or closed, id. at 461, 101 S.Ct. at 2864, but the Court specifically stated that its holding encompassed "only the interior of the passenger compartment of an automobile and [not] the trunk." Id. at 460-61 n. 4, 101 S.Ct. at 2864 n. 4.
In this case Stout was arrested for possession of marijuana after police found a marijuana roach in plain view in the front seat of the station wagon. After arresting Stout, Palmer opened the hatchback, raised the flap that covered the spare tire compartment, smelled a strong odor of marijuana, and discovered the metal container that held 10.6 pounds of marijuana. In Baxter v. State, 274 Ark. 539, 626 S.W.2d 935, cert. denied, 457 U.S. 1118, 102 S.Ct. 2930, 73 L.Ed.2d 1331 (1982), we held, without discussion, that the hatchback area of an automobile qualifies as part of the "passenger compartment" under Belton. That holding appears to be the general construction of "passenger compartment" under Belton. See United States v. Russell, 670 F.2d 323 (D.C.Cir.1982); Stevens v. State, 38 Ark.App. 209, 832 S.W.2d 275 (1992); State v. Delossantos, 211 Conn. 258, 559 A.2d 164 (1989). Professor Wayne LaFave in his treatise on search and seizure suggests that the passenger compartment is to be read as all space reachable without getting out of the vehicle and without regard to the likelihood in the particular case that it was possible to reach the object. 3 Wayne LaFave, Search and Seizure § 7.1(c), at 16-17 (2d ed. 1987 & Supp.1994). In summary, the trial court correctly ruled that under the Fourth Amendment the search was justified as being incident to a lawful arrest under Belton.
Next, appellant asks this court to hold that, even if the search and seizure were valid under the Fourth Amendment, they were unconstitutional under Article 2, Section 15 of the Constitution of Arkansas. Of course, we could hold that the Arkansas Constitution provides greater protection against unreasonable searches than does the Constitution of the United States, but we see no reason to do so. The wording of each document is comparable, and through the years, in construing this part of the Arkansas Constitution, we have followed the Supreme Court cases. It seems especially appropriate to do so in this case because courts in the past had great difficulty in balancing the competing interests and, at the same time, setting out workable rules for search and seizure cases involving automobiles. See 1987 Unofficial Supplementary Commentary to A.R.Cr.P. Rule 12.4. Belton has provided a practical and workable rule for fourteen years, and we have followed it on many occasions. Consequently, we choose to continue to interpret "unreasonable search" in Article 2, Section 15 of the Constitution of Arkansas in the same manner the Supreme Court interprets the Fourth Amendment to the Constitution of the United States.
Appellant next argues that the Arkansas Rules of Criminal Procedure provide greater protection against unreasonable searches than does the Fourth Amendment, see Cook v. State, 293 Ark. 103, 106, 732 S.W.2d 462, 464 (1987), and that under A.R.Cr.P. Rule 12.4, deputy sheriff Palmer could not have lawfully searched the area under the hatchback without probable cause. Appellant asserts that Palmer improperly searched the hatchback area because he only saw a marijuana roach, which, without more, is insufficient to establish probable cause. See State v. Villines, 304 Ark. 128, 801 S.W.2d 29 (1990). Standing alone, Rule 12.4 does provide a more narrow definition of a reasonable search than does Belton because it requires the officer who stops a vehicle to have a reasonable belief that the vehicle contains things which are connected with the offense....
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