Szabo v. State

• Decision Date: 23 September 2015
• Docket Number: No. CR–14–933,CR–14–933
• Citation: 2015 Ark. App. 512,470 S.W.3d 696
• Parties: Aaron James Szabo, Appellant v. State of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2015 Ark. App. 512

470 S.W.3d 696

Aaron James Szabo, Appellant

v.State of Arkansas, Appellee.

No. CR–14–933

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered September 23, 2015

Norwood & Norwood, P.A., Rogers, by: Jon Nelson, Alison Lee, and Doug Norwood, for appellant.

Leslie Rutledge, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.

Opinion

CLIFF HOOFMAN, Judge

Aaron James Szabo appeals after he entered a conditional plea on the charge of Driving While Intoxicated—First Offense and was sentenced by the Washington County Circuit Court (“trial court”) to a fine of $325, court costs of $300, and booking/administrative fee of $20.¹ On appeal, appellant contends that (1) the police officer illegally seized appellant by opening the driver's door and positioning himself between the open door and the seat occupied by appellant; (2) the police officer had no objective reason to believe that appellant was in immediate need of medical assistance and imminent danger of death or serious bodily harm, and thus, no exigent circumstances existed authorizing the officers opening of the car door and entry into appellant's vehicle; (3) the police officer illegally searched appellant's vehicle by opening the driver's door and leaning into appellant's vehicle; and (4) the police officer illegally seized appellant by opening the driver's door, entering appellant's vehicle, turning off appellant's vehicle,and removing and taking possession of the keys to the vehicle. We affirm.

Appellant appealed his case for driving while intoxicated from the Fayetteville District Court to the Washington County Circuit Court on March 6, 2014. On April 25, 2014, appellant filed a motion to suppress illegally obtained evidence, and a hearing was held on June 16, 2014. At the hearing, Corporal Greg Dawson testified that he was patrolling on March 2, 2013, at approximately 4:30 in the morning when he noticed appellant's vehicle parked in a parking lot on Block Street with its lights on. After parking his vehicle a few spots from appellant, he walked up to appellant's car and noticed that the vehicle was “running,” and appellant was in the driver's seat “laid back, somewhat leaning over the center.” After knocking on the window several times without any response or movement, Corporal Dawson opened the unlocked door and leaned into the vehicle. On direct examination, he testified that he “leaned in, shook the driver, asked him if he was awake, didn't get a response. That's when I noticed an odor of intoxicants from inside that vehicle, figuring that he was intoxicated that's why I turned the vehicle off.” Corporal Dawson knew appellant was breathing, but he did not know if he was just asleep or unconscious. While he did not eliminate his medical concerns, once he smelled the alcohol, he thought that appellant was probably “drunk” and “passed out.” After not receiving any response from appellant, despite several attempts to wake him, Corporal Dawson testified that he “did the sternum rub on him.”

On cross-examination, appellant's counsel questioned Corporal Dawson regarding his written report that did not mention an “odor of intoxicants” until the third paragraph, in which he described appellant's behavior after exiting the vehicle. Corporal Dawson explained that he did not remember whether he shook appellant before or after he turned the vehicle off and placed the keys on top of the vehicle. However, he testified that he remembered that he noticed the smell of alcohol before he turned the vehicle off because he was concerned that, if appellant woke up with the engine running, appellant would immediately try to drive with him in the doorway. After observing the video from his vehicle's dashboard camera that was played during the hearing, he admitted that he had turned the vehicle off before he verbally tried to wake appellant but did not remember when he started to shake appellant. However, he admitted that “[m]ore than likely” he had turned the vehicle off before he attempted to wake appellant either verbally or by physically shaking him. Additionally, at some point after Corporal Dawson opened the door, he heard appellant snoring. After appellant finally woke up, he was subsequently arrested for driving while intoxicated by Officer Ryan Schleiff, who testified that he responded to the scene after appellant was already outside of the vehicle and had performed the field-sobriety tests.

After appellant's counsel orally argued that the search and seizure violated appellant's Fourth Amendment right, the trial court made the following ruling:

I suppose the real issue here is whether or not opening the door is, one, a seizure and the officer going into the interior of the vehicle, of the Defendant's vehicle is a search. That's, at least as I understand it, the issue. I think it is of some significance here that one, this occurred in the early morning hours of March 2nd, and that seems to be always a problem in these cases that we don't—they don't get to this Court for over a year and memories do tend to fade.

But nonetheless, I think that the testimony of Corporal Dawson is important to the extent that he did consider when he approached the vehicle—again the facts are not in dispute at all, about 4:00 a.m. on March 2nd, last year. At that particular time of day with the motor of the vehicle running, with the Defendant, Mr. Szabo apparently unconscious or sound asleep, described it a variety of ways, unresponsive when the officer bangs on the window or taps on the window or beats on the window. Given the fact, at least in my view, that he at least, he, being the police officer, Corporal Dawson considered the fact that it may be a medical problem, although clearly he didn't know and as it turned out it was not, so I don't see any particular need to include that in the report.

But I think it was clearly appropriate to continue the investigation by opening the door, and to some extent it can be argued and I think with some force, that the situation as presented and as described may well have constituted exigent circumstances. So once he opens the door, he, being Officer Dawson, smells the odor of alcohol and then clearly has a right under 3.1 to continue his investigation by seizing the Defendant and so in my judgment—and it's an interesting case. And perhaps there are obviously not a number of cases in any jurisdiction that are identical, but nonetheless, I feel as though the seizure did not occur until the keys were removed from the ignition, the car was turned out—again, turned off after the odor of alcohol was apparent. So in my judgment the State has met its burden and the motion is denied.

After appellant timely filed his appeal, this court ordered appellant to file a supplemental addendum to provide an exhibit of the video recording of the officer's dashboard camera to the members of our court. Szabo v. State, 2015 Ark. App. 354, 2015 WL 3424527. Appellant properly filed a supplemental addendum, and this appeal followed.

Appellant contends on appeal that (1) the police officer illegally seized appellant by opening the driver's door and positioning himself between the open...