Tiller v. State

• Decision Date: 27 August 2014
• Docket Number: No. CR–14–16.,CR–14–16.
• Citation: 2014 Ark. App. 431,439 S.W.3d 705
• Parties: Courtney Ellen TILLER, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2014 Ark. App. 431

439 S.W.3d 705

Courtney Ellen TILLER, Appellant

v.STATE of Arkansas, Appellee.

No. CR–14–16.

Court of Appeals of Arkansas.

Aug. 27, 2014.

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

Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

Opinion

LARRY D. VAUGHT, Judge.

The Washington County Circuit Court found appellant Courtney Tiller guilty of first-offense driving while intoxicated (DWI),¹ and sentenced her to 365 days in the county jail, with credit for one day served and 364 days suspended, along with a $200 fine and $300 court costs. On appeal, Tiller argues that the trial court erred in denying her motions to suppress the results of three field sobriety tests (FST) and evidence of her refusal to take a breath test. We affirm.

At the suppression hearing, Springdale Police Officer Rusty Boyd testified that on October 23, 2012, he was on patrol during the evening shift when he observed a white Nissan Maxima cross the center line of the road several times. Officer Boyd signaled to the driver of the vehicle to pull over, at which time the officer made contact with Tiller. The officer testified that Tiller's eyes were bloodshot and watery; her actions were lethargic and exaggerated; and her speech was slow and deliberate. He said that although she produced her license, she was not able to produce her proof of insurance or registration; however, he found the documents in her glove box. While Tiller denied that she had been drinking alcohol, she stated that she had taken a Celexa

for depression about an hour prior to the stop. The officer testified that Celexa fell under the “CNS depressant category,” and that a person can be intoxicated on a CNS depressant.

Based on Tiller's movements, speech, and consumption of a CNS depressant, Officer Boyd asked her to step out of her vehicle and advised her that he was going to administer three FST. He testified that Tiller demonstrated six of six indicators of impairment during the first test; six of eight indicators of impairment during the second test; and three of four indicators of impairment during the third test. Officer Boyd stated that based on his observations of Tiller before the testing and her failure of the tests, he believed that she was intoxicated and not able to safely operate her vehicle, which he concluded constituted probable cause sufficient to support her arrest for DWI.² Officer Boyd transported Tiller to jail, where he read her the implied-consent form. Although she initialed the form, she refused to take the breath test. She was charged with first-offense DWI and violation of implied consent, and she was cited for driving left of center.

At the conclusion of Officer Boyd's testimony, counsel for Tiller moved to suppress the results of the FST, arguing that Tiller's Fourth Amendment rights had been violated because the officer conducted a warrantless seizure without her consent. Without the FST results, argued Tiller's counsel, there was a lack of probable cause to support the DWI arrest.³ The trial court denied the motion to suppress.

At the onset of the bench trial, counsel for Tiller renewed the motion to suppress the results of the FST, which the trial court denied. Counsel additionally moved to suppress evidence of Tiller's refusal to take the breath test, arguing that she had the constitutional right to refuse the test because it was a warrantless search, it was not evidence of consciousness of guilt, and admission would violate Rule 403 of the Arkansas Rules of Evidence. The trial court denied this motion as well. Thereafter, the parties stipulated to Officer Boyd's testimony from the suppression hearing, and the trial court found Tiller guilty of first-offense DWI. Tiller appeals, challenging the trial court's denial of her motions to suppress.

When reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Fisher v. State, 2013 Ark. App. 301, at 3–4, 427 S.W.3d 743, 746. A finding is in clear error when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. at 4, 427 S.W.3d at 746. The court defers to the superiority of the trial court to evaluate the credibility of witnesses who testify at asuppression hearing. Id., 427 S.W.3d at 746.

Tiller's first point on appeal—based on a Fourth Amendment violation—is that the trial court erred in denying her motion to suppress evidence of the FST results because the officer had no warrant to administer the tests and he failed to obtain her consent to testing. In Frette v. City of Springdale, our supreme court held that an officer's actions in ordering the defendant out of his parked truck to investigate a DWI, which included FST, constituted a “seizure” under the Fourth Amendment. 331 Ark. 103, 108–09, 959 S.W.2d 734, 736 (1998) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). However, our supreme court further held that such a warrantless intrusion is permitted when the officer has reasonable suspicion under Rule 3.1 of the Arkansas Rules of Criminal Procedure to suspect that the occupant of a parked vehicle is about to commit a DWI. Frette, 331 Ark. at 109, 959 S.W.2d at 736–37 (citations omitted). Rule 3.1 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 identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer's presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

Ark. R.Crim. P. 3.1 (2012). “Reasonable suspicion” means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; i.e., a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion. Frette, 331 Ark. at 109–10, 959 S.W.2d at 737 (citing Ark. R.Crim. P. 2.1). The justification for an investigative stop pursuant to these rules depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity. Frette, 331 Ark. at 110, 959 S.W.2d at 737 (citations omitted).

In Fisher, 2013 Ark. App. 301, at 4, 427 S.W.3d at 746, the defendant moved to suppress evidence of FST (including a portable-breath test), administered at a sobriety checkpoint, contending it was seized from him without a warrant and without his consent. The trial court denied the motion to suppress. Our court affirmed on appeal, holding that before the officer administered the FST, he had reasonable suspicion that the defendant had been driving while intoxicated because the defendant had bloodshot and watery eyes, smelled of intoxicants, had been driving, and admitted that he had been drinking. Id. at 8, 427 S.W.3d at 748.

Likewise, in the case at bar, based on Rules 2.1 and 3.1, along with our holding in Fisher, we hold that there was no Fourth Amendment violation because Officer Boyd's warrantless seizure (commanding Tiller to perform the FST) was based on his reasonable suspicion that she had committed the offense of DWI. The officer witnessed Tiller repeatedly cross the center line in violation of Arkansas Code Annotated section 27–51–301 (Repl.2010). He observed that her eyes were bloodshot and watery; her actions were lethargic and exaggerated; and her speech was slow and deliberate. She was unable to produce her insurance or registration documentation, which he found in the glove box. Finally, Tiller admitted that she had taken a CNS depressant an hour prior to the stop, which, according to Officer Boyd, can intoxicate a person. Because Officer Boyd's warrantless seizure was authorized under Rules 2.1 and 3.1, it was lawful and Tiller's consent was not required. Accordingly, we affirm on this point.

Furthermore, we hold that Officer Boyd had probable cause to arrest Tiller without consideration of the FST. A law-enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed the offense of driving a vehicle while under the influence of an intoxicating liquor or drug. Stewart v. State, 2010 Ark. App. 9, at 6, 373 S.W.3d 387, 391 (citing State v. Lester, 343 Ark. 662, 668, 38 S.W.3d 313, 316–17 (2001) ; Ark. R.Crim. P. 4.1(a)(ii)(C) (2009)⁴ ). Reasonable or probable cause for a warrantless arrest exists when the facts and circumstances within an officer's knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person to be arrested. Stewart, 2010 Ark. App. 9, at 6–7, 373 S.W.3d at 391. The testimony of Officer Boyd, wherein he described his observations of Tiller leading up to the FST (as set forth above), gave rise to probable cause that she was driving while intoxicated. See also Fisher, 2013 Ark. App. 301, at 8, 427 S.W.3d at 749 (holding that an arrest was supported by probable cause where the officer testified that the...