Tillman v. State, CR

• Decision Date: 08 March 1982
• Docket Number: No. CR,CR
• Citation: 630 S.W.2d 5,275 Ark. 275
• Parties: Charles TILLMAN and Charles Huggins, Appellants, v. STATE of Arkansas, Appellee. Leandrew BYRD, Jr., Appellant, v. STATE of Arkansas, Appellee. 81-47.
• Court: Arkansas Supreme Court

Page 5

630 S.W.2d 5

275 Ark. 275

Charles TILLMAN and Charles Huggins, Appellants, v. STATE of Arkansas, Appellee.

Leandrew BYRD, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 81-47.

Supreme Court of Arkansas.

March 8, 1982.

Rehearing Denied April 12, 1982.

McArthur & Lassiter, P. A., Little Rock, for Tillman and huggins.

Brown & Kesl, P. A., England, for Byrd.

Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Appellants were convicted of theft of property and burglary of a residence in Lonoke County, receiving concurrent ten year sentences on each charge. For reversal, they allege the trial court erred in not suppressing evidence seized without a warrant in not permitting the introduction of statements elicited from them by the police, and in permitting a police officer to give opinion testimony. We find no error.

The facts given us are that shortly after noon on February 4, 1980, a private citizen followed the three appellants from North Little Rock to near Scott, a distance of about 15 miles, and watched them slow down and scrutinize residences along the way. He formed the belief that they were "casing" the residences for a burglary, particularly one at the intersection of Highway 130 and Walker's Corner Road. Leaving his own pursuits, he drove to the police station at England where he reported the information to Deputy Sheriff Alan Swint. Mr. Swint knew the location to be sparsely settled, to have been subjected to a rash of recent burglaries and knew the residence of George Brown to be at that point. Appellants' car, a bronze Cadillac, was unfamiliar to him. Swint went directly to the scene where he saw the Cadillac stopped, but positioned diagonally across the highway in such a manner as to suggest having just backed from the Brown driveway. Swint radioed another officer to investigate the residence as he followed the appellants. In North Little Rock he signalled another police vehicle to assist him and with that help he stopped the occupants and told them they were being held for suspicion of burglary. After handcuffing the appellants he received a radio report that the Brown residence had, in fact, been burglarized. With that information, he opened the trunk and observed two garment bags. One, he maintains, was partially opened, enabling him to see articles of silver service. On those facts appellants' motion to suppress was denied.

I.

Appellants maintain the initial stop and detention was an unlawful arrest and seizure and there was no probable cause for the search. We disagree.

Our Rule of Criminal Procedure 3.1 gives a police officer the right to stop and detain for up to 15 minutes ¹ any person he reasonably suspects has committed a felony. Rule 2.1 defines the test as more than an imaginary or purely conjectural suspicion, but less than probable cause. Even the higher standard of probable cause requires much less than a certainty, as it is said to exist simply if the circumstances known to the officer would warrant a prudent man in believing a suspect had committed a crime. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1958); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1959). It does not depend on the same type of evidence as would be needed to support a conviction. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

Hence, these considerations are relative, and can be compared to a ladder with four rungs: at the highest level is certain knowledge, as in the case of an eyewitness to a crime; next is probable cause, less than a certainty, but enough to satisfy a prudent man; lower yet is a reasonable suspicion; and at the lowest level, a bare or imaginary suspicion, founded on nothing more than a hunch. Applying that standard to this case, we regard the requirements of reasonable suspicion as having been fully satisfied.

To validate this conclusion one need look no farther than the landmark decision of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The circumstances of that case provide a striking analogy to this case. Terry had appealed a conviction for carrying a concealed weapon. He was observed by a detective about 2:30 one afternoon. The officer's interest in Terry and two companions was aroused because they walked back and forth in a particular block peering in a store window and then conferring at the corner. The officer became suspicious and believed the men were "casing" the store for a robbery. He approached the men, identified himself as a police officer and asked for their names; he was not acquainted with any of the three by name or sight and had received no information concerning them from any source. When the men "mumbled something" in response to his question the officer grabbed Terry, "spun him around" to frisk him and found a pistol in his overcoat pocket. The Supreme Court of the United States, whose sensitivity to Fourth Amendment constraints needs no defense, affirmed a decision of the Supreme Court of Ohio that the revolver was properly admitted in evidence, holding that the officer had reasonable grounds to believe that Terry was armed and dangerous and that his behavior justified an investigative stop. The court noted that the suspects had gone through a series of acts, while innocent in themselves, when taken together warranted further investigation. And while the officer could not rely entirely on his intuition, he could draw on his experience in observing people under a variety of circumstances. The cases are rationally indistinguishable. A similar holding was reached in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the court dealt with the problem of the United States Border Patrol's authority to stop automobiles near the Mexican border. Referring to Terry v. Ohio, the court said:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (Emphasis supplied.)

In Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890, Terry v. Ohio was described as holding that conduct lawful in itself can be such as to arouse a reasonable suspicion when viewed by a trained police officer.

In United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the court observed that while trained police officers are able to draw inferences and make deductions that might well elude others, in the final analysis investigatory stops must be justified by some objective manifestation that the person is engaged in criminal activity. Noting that the whole picture must be considered the court said:

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same-and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. (Emphasis supplied.)

In this case the objective manifestations are found in the fact that the suspects were followed a considerable distance and observed to study residences along the way as if to be "casing" them; coupled to those circumstances are the knowledge and observations of Officer Swint that the area had been frequently burglarized, that the vehicle was unfamiliar to him, the occupants unknown to him and were thought to have just emerged from the Brown driveway 45 minutes to an hour after the informant observed them "casing" the residence. Singly, those circumstances indicate nothing; collectively, they add up to a reasonable suspicion. The case may be stronger than Terry v. Ohio -stores and store windows, unlike private homes, are intended to attract scrutiny. We conclude that the initial stop of the appellants was based on reasonable suspicion and hence not a violation of the Fourth Amendment.

The second phase of appellants' argument is that the warrantless search of the automobile was a violation of the Fourth Amendment. But we believe the search comes within the "automobile exception" announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The State does not contend the search was incidental to a lawful arrest (assuming appellants' detention amounted to an arrest), as such searches are restricted to the passenger compartment of the vehicle. NEW YORK V. BELTON, --- U.S. ----, 101 S.CT. 2860, 69 L.ED.2D 768 (1981)². What is claimed, correctly we think, is that when Officer Swint learned the Brown residence had been burglarized, at that point he had probable cause to believe the vehicle contained evidence of the crime and, hence, a search of the vehicle was proper. Rule 14.1(a), A.R.Crim.P., gives an officer the right to make a warrantless search of a vehicle detained on a public way if he has reasonable cause to believe the vehicle contains evidence subject to seizure, and exigent circumstances require immediate action to prevent removal or destruction of such evidence. Rule 14.1 is consistent with Carroll v. United States, in permitting search and seizure whenever "probable cause to believe that the area contains evidence of a crime conjoins with...