State v. Cherry
2014 Ark. 194
Ark.2014Background
- Dwayne R. Cherry was stopped by Little Rock officers while riding an unregistered moped; officers had prior contacts with him and observed both mopeds lacked registration.
- Officer Pasmen testified Cherry appeared more nervous than usual; Pasmen conducted a patdown and said Cherry gave verbal consent to search his pockets, producing a purse containing methamphetamine.
- Officer Smith corroborated the patdown and that Cherry was very nervous; Smith did not testify that Cherry consented to an interior-pockets search.
- The circuit court found there was no reasonable suspicion that Cherry was armed and dangerous, concluded the Rule 3.4 patdown was unjustified, and determined Cherry did not consent to an interior search.
- The State appealed, arguing the circuit court erred by treating consent as insufficient to satisfy the Fourth Amendment and by effectively requiring reasonable suspicion as a prerequisite to a Rule 11.1 consent search.
- The Supreme Court of Arkansas dismissed the appeal as improvident for State interlocutory review because the central issue—voluntariness of consent—was a factual determination (disputed testimony), not a pure legal question requiring statewide uniformity.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cherry) | Held |
|---|---|---|---|
| Whether the interior-pocket search was lawful | Consent to search under Ark. R. Crim. P. 11.1 validates the search absent a warrant | No valid consent to interior search; patdown lacked reasonable-suspicion basis under Rule 3.4 | Appeal dismissed; voluntariness of consent was a factual finding and not proper for State interlocutory appeal |
| Whether Rule 3.4 justified intrusion into pockets | Officer safety patdown permitted and consent supplemented authority to search pockets | Officer felt no weapon during patdown; no reasonable suspicion to justify more than a frisk | Circuit court found no basis under Rule 3.4; factual credibility disputes preclude State review |
| Whether the court added a new legal prerequisite (reasonable suspicion) to consent searches | State: circuit court improperly required reasonable suspicion in addition to consent | Cherry: consent was not proved and court correctly relied on factual findings | Court treated the disagreement as factual (credibility of consent) and declined to review on State appeal grounds |
| Whether this appeal is a proper interlocutory State appeal | State: framed issue as legal error warranting review | Respondent: voluntariness is factual; no rule interpretation of broad application | Court: not a proper State appeal because the outcome turns on disputed facts, not a narrow legal interpretation |
Key Cases Cited
- Pennsylvania v. Mimms, 434 U.S. 106 (holding that a frisk for officer safety may be reasonable when an officer has reason to believe a person is armed)