Thompson v. State, CR

• Decision Date: 22 October 1990
• Docket Number: No. CR,CR
• Citation: 797 S.W.2d 450,303 Ark. 407
• Parties: Raymond A. THOMPSON, Appellant, v. STATE of Arkansas, Appellee. 90-159.
• Court: Arkansas Supreme Court

Page 450

797 S.W.2d 450

303 Ark. 407

Raymond A. THOMPSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-159.

Supreme Court of Arkansas.

Oct. 22, 1990.

Paul Petty, Searcy, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

This is an appeal from the appellant's conviction of DWI, first offense. Appellant was sentenced to thirty days imprisonment with twenty-five days suspended on the condition that he attend and complete DWI school and not commit an alcohol-related offense within the next six months. Also, he was fined $550.00 and his driver's license was suspended for ninety days. As his sole issue on appeal, the appellant argues that the trial court erred in denying his pretrial motion to suppress because of an unlawful detention and arrest. We disagree, and therefore affirm.

The facts leading to the appellant's arrest for DWI are undisputed. While on patrol at 1:30 a.m., Searcy Police Officer Robert Parsons noticed the appellant's car parked legally with its lights on and the motor running. The car was parked on Center Street, which is located adjacent to the parking lot for the Townhouse Apartments. When Officer Parsons passed by again at 1:40 a.m., appellant's car was still parked with its lights on and motor running. Officer Parsons stopped his car behind appellant's and approached the appellant's car to investigate. At the suppression hearing, Officer Parsons stated the reasons he stopped to investigate were that there might be something wrong with the driver, there might be something going on that shouldn't be going on, or someone might be going through cars on the parking lot.

When Officer Parsons approached the parked car, he found the appellant and a woman sitting in the car. In answer to the officer's inquiry, the appellant volunteered that he had been to a club and was taking his girlfriend home. After smelling alcohol on the appellant, Officer Parsons asked the appellant to step out of the car. The appellant stumbled and was unable to perform a sobriety test. At this time, the appellant was informed that he was under arrest for DWI.

In his motion to suppress and here on appeal, the appellant contends that Officer Parsons' approaching his parked car constituted a seizure or detention and that this seizure was unlawful under the fourth amendment because the officer had no reason to suspect that the appellant had committed or was about to commit a crime. The appellant's argument is contrary to established fourth amendment law. Because this court has never addressed this argument, we take this opportunity to clarify the law in this area.

Not all personal intercourse between policemen and citizens involves "seizures" of persons under the fourth amendment. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). A "seizure" occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Id.

Police-citizen encounters have been classified into three categories. See U.S. v. Hernandez, 854 F.2d 295 (8th Cir.1988). 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. Id. 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. Id. 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. Id.

Here, Officer Parsons' approach to investigate the appellant's car parked in a public place fits into the first category, and thus is not a "seizure" within the meaning of the fourth amendment. See W. LaFave, Search & Seizure, § 9.2(h), at 408-09 (1987); see also cases cited therein Atchley v. State, 393 So.2d 1034 (Ala.Crim.App.1981) (court held there was no seizure under the fourth amendment where the police, having no knowledge of any criminal activity in the area, approached a car legally parked with its lights off after midnight and asked the driver if there was any problem and for some identification); State v. Harlan, 301 N.W.2d 717 (Iowa 1981) (court held there was no seizure, where a police officer stopped behind and approached the defendant's parked car and observed that the defendant had bloodshot eyes and smelled of alcohol. ...