Hoey v. State
2017 Ark. App. 253
| Ark. Ct. App. | 2017Background
- Hoey was stopped on I-30 after Officer Pettit observed following-too-closely; driver Harry Taylor produced a one-way rental agreement in Hoey’s name and both men had criminal histories.
- Pettit noticed multiple cell phones, air fresheners, and food wrappers; Taylor and Hoey gave inconsistent accounts of their trip and appeared extremely nervous.
- Both men refused consent to search; Pettit called for a K-9 free-air sniff, which alerted; officers then searched the trunk and found ~56 pounds of marijuana.
- A jury was initially empaneled in Oct. 2014, but after defense sought exclusion/continuance for late discovery the court granted a continuance and sua sponte declared a mistrial; Hoey did not object at the time.
- At the later trial, cell-phone extraction reports, text messages, Google searches, K-9 testimony, and lab results were admitted; Taylor testified he alone placed the drugs in the trunk and that Hoey was uninvolved.
- Hoey was convicted of possession with intent to deliver >25 lbs. of marijuana; he appealed arguing (1) double jeopardy from the mistrial, (2) suppression error (seizure/search), and (3) improper admission of electronic evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy from mistrial | Hoey: mistrial resulted from State’s discovery failures and thus benefited the State; failure to object should not imply consent | State: Hoey requested a continuance and acquiesced to mistrial; failure to object implies consent so no double jeopardy bar | Court: Hoey impliedly consented to mistrial by seeking continuance and not objecting; double jeopardy did not bar retrial |
| Legality/length of post-stop detention and search | Hoey: traffic-stop purpose concluded (Taylor signed warning); holding documents to await K-9 prolonged detention without reasonable suspicion or probable cause; Rodriguez/Place principles apply | State: totality of circumstances (nervousness, inconsistent stories, one-way rental in Hoey’s name, multiple phones/air fresheners, prior records) gave reasonable suspicion before stop ended; officer diligently awaited nearest K-9 (<1 hour) | Court: reasonable suspicion existed before completion of traffic stop; waiting for K-9 was reasonable under Ark. R. Crim. P. 3.1 and precedent; search after dog alert was lawful |
| Admissibility/authentication of phone data and texts | Hoey: State failed to authenticate authorship/connection of messages/searches to him; evidence was prejudicial character evidence under Rule 404 | State: forensic examiner tied extraction reports to phones Hoey admitted owning; messages and searches were relevant to intent/plan and properly authenticated by examiner | Court: examiner’s testimony sufficiently authenticated electronic extractions under Ark. R. Evid. 901; Rule 404(b) permitted evidence for intent/plan; admission not an abuse of discretion |
Key Cases Cited
- Yarbrough v. State, 370 Ark. 31 (Ark. 2007) (factors for reasonable suspicion in traffic-stop context)
- Laime v. State, 347 Ark. 142 (Ark. 2001) (totality-of-circumstances test for reasonable suspicion)
- Phillips v. State, 338 Ark. 209 (Ark. 1999) (implied consent to mistrial when defendant benefits and does not object)
- Woods v. State, 287 Ark. 212 (Ark. 1985) (continuance granted for defense due to prosecution nondisclosure found to be for defendant’s benefit)
- Wilson v. State, 2014 Ark. 8 (Ark. 2014) (diligence in securing canine can justify extension of detention)
- Omar v. State, 90 Ark. App. 436 (Ark. Ct. App. 2007) (approving delay while awaiting drug dog under certain circumstances)
- Sims v. State, 356 Ark. 507 (Ark. 2004) (detention while awaiting canine sniff may be reasonable when justified)