Brazwell v. StateBrazwell v. State
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Appellant Cameron Brazwell appeals his convictions for both simultaneous possession of drugs and a firearm and possession of drugs with intent to deliver. He argues that the trial court erred in denying his motion to suppress evidence. He also submits that, because his conviction for pоssession of drugs with intent to deliver is a lesser-included offense of simultaneous possession of dmgs and a firearm, he was illegally being convicted and punished twice for the same offense. We agree that the trial court should have granted Brazwell’s motion to suppress.
On March 22, 2002, Brazwell was сharged with three offenses: 1) simultaneous possession of drugs and firearms, see
In reviewing a ruling denying a defendant’s motion to suppress, we conduct 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. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We defer to the trial сourt in assessing the credibility
At the suppression hearing in this case, Little Rock Police Detective Christian Sterka testified that, on January 15, 2002, he was working in the Little Rock Police Department’s patrol division. Sterka was patrolling his district, which included the 4400 block of West 12th Street. In that block, there is a striр mall that contains a liquor store and an E-Z Mart. Large signs posted on those stores warned, “No Loitering, No Sitting, No Standing.” Sterka testified that the police had received numerous complaints from both store owners about loitering and narcotics activity. Shortly before 10:00 p.m., Sterka pulled into the stores’ parking lot and observed Brazwell sitting on the window ledge of the liquor store. Sterka said that Brazwell did not appear to be of legal drinking age, and he was sitting directly beneath one of the “No Loitering” signs. Sterka approached him “for purposes of identification аnd the likelihood of issuing him a citation for loitering.”
As Sterka exited his vehicle and began approaching Brazwell, Officer Sterka noticed a large bulge on Brazwell’s right thigh. Brazwell began rubbing the bulge, which caused Sterka to be concerned for his safety; Sterka testified that it was a fairly dark, poorly lit area, and he could not tell what the bulge was. Sterka asked Brazwell to approach the police vehicle and place his hands on the car. As Brazwell approached the police car, he spontaneously said, “Officer, I’m going to be straight. I’ve got something on me.” Sterka asked what it was, and Brazwell said that he had a gun inside his pants pocket. Brazwell was wearing two pairs of pants, and the gun was in the left pants pocket of the inside pair of pants. The bulge, however, had been on Brazwell’s right thigh, and Sterka later determined the bulge was сaused by a bandana. Sterka had not noticed the gun until Brazwell mentioned it.
After retrieving the gun, Sterka took Brazwell into custody for being in possession of the weapon. During a search incident to the arrest for the gun, Sterka found four individually wrapped packages of crack coсaine in the outside pair of pants. Sterka arrested Brazwell on drug charges, as well. After Sterka read Brázwell his Miranda rights, Brazwell said that he had been on the parking lot in order to deliver the handgun to another individual, and that the crack cocaine was for his personal use.
On cross-еxamination, Sterka asserted that the only reason he was going to search Brazwell was because the bulge, which Brazwell was rubbing, made him “uncomfortable.” Other than that, however, Sterka said that Brazwell did not behave threateningly, act like he was going to run, or do anything else that would be inaрpropriate or illegal. The State filed a three-count information against Brazwell on March 22, 2002, charging him with simultaneous possession of drugs and firearms, possession of a controlled substance with intent to deliver, and loitering for narcotics.
As noted above, on appeal, Brаzwell argues that his motion to suppress the gun and drugs should have been granted because Sterka lacked reasonable suspicion to stop or detain him. Thus, the question this court must answer is whether Sterka had the authority, under
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) amisdemeanor 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.
(Emphasis added.) The rule is precise in stating that the reasonable suspicion must be tied to commission of a felony or a misdemеanor involving forcible injury to persons or property. See Laime, supra.
The crime Sterka suspected Brazwell of committing was loitering, an offense defined in
The State argues that Sterka could have arrested Brazwell for loitering and searched him incident to that arrest. We disagree. An officer may arrest a person without a warrant in certain situations, such as when the officer has “reasonable cause to believe that such person has committed any violation of law in the officer’s presence.” See
Thus, for Sterka to have been able to arrest Brazwell, as the State claims would have been proper, Sterka would have had to reasonably suspect that Brazwell was loitering, at the time he stopped and detained Brazwell by asking Brazwell to approach his police vehicle. See Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002). However, at the time Sterka detained Brazwеll, Sterka had not observed Brazwell long enough to determine if he had been “lingering” or “remaining” outside the liquor store, as is required by
The State also proposes that Sterka “noted that [Brazwell] did not appear old enough to drink and that the nearby store owners complained of drug trafficking by persons who, like Brazwell, were loitering
Similarly, in Davis v. State, 351 Ark. 406, 4 S.W.3d 892 (2003), this court affirmed the denial of appellant Davis’s motion to suppress where the facts showed the officers had reasonable suspicion to stop and detain him. There, Davis and another man were in a high-crime area known for drug activity. They stood in a lot beside a vacant house when the officers saw a hand-to-hand exchange. As the officers approached, the men separated and walked quickly away. Davis gave one of the officers a false name and birth date, and he appeared nervous, fidgety and sweаty. Given the totality of the circumstances, this court held, the trial court did not err in denying Davis’s suppression motion. Davis, 351 Ark. at 417.
The present case is similar to the case of Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998). In Stewart, the investigating officer saw a woman, Kathy Stewart, standing on a street corner about 1:45 in the morning. The offiсer asked Stewart to approach his patrol car because of the time and because the corner was in a known drug area. As Stewart approached, she kept putting her hand in her coat pocket, despite the officer’s request that she keep both hands out of her pockets. When Stewart reached the car, the officer asked her to place both hands on the vehicle, and he conducted a pat-down search for weapons.. The officer discovered some cash and a matchbox, which contained two rocks of crack cocaine. Stewart, 332 Ark. at 141. In reversing the trial court’s denial of Stewart’s suppression motion, this court concluded that there was “nothing about Stewart’s actions or demeanor that indicated that she was involved in any illegal activity. Thus, the officer[’s] only justification fоr stopping Stewart was simply that she was standing in the wrong place at the wrong time.” Id. at 146.
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See also Anderson v. State, 79 Ark. App. 286, 86 S.W.3d 403 (2002) (standing near a “no loitering” sign, without more, did not justify the officer’s stop under
As discussed above, Sterka saw Brazwell sitting under a “No Loitering” sign in front of a liquor store at about 10:00 p.m., in a neighborhood from which the police had received numerous complaints about loitering and narcotics activity, and Brazwell did not appear to be of legal drinking age. However, Sterka did not testify that he had received any complaints of illegal activity on that particular night, and he offered no evidence that Brazwell appeared to be doing anything illegal. He did not even say how long he had seen Brazwell sitting there, so it is questionable if the facts even gave rise to a reasonable suspicion that Brazwell was loitering, which requires that a person “linger or remain” in a place. According to Sterka’s testimony, Brazwell’s demeanor was cooperative; he made no attempts to conceal anything or. avoid identification. Sterka did not testify that he knew who Brazwell was, and there was no evidenсe that Brazwell was consorting with anyone else suspicious. In sum, nothing about Brazwell, except for the fact that he looked young and was sitting under a “No Loitering” sign, gave Sterka any grounds to suspect that Brazwell was committing, had committed, or was about to commit a felony or a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property. Therefore, Sterka had no basis for stopping and detaining Brazwell, and the trial court erred in denying Brazwell’s motion to suppress.
In Brazwell’s second point on appеal, he suggests that double jeopardy attached when the State was allowed to convict and sentence him for both simultaneous possession of drugs and a firearm and the lesser-included offense of possession of drugs with intent to deliver; Brazwell also claims this court should reconsider the holding of Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000) which bears on the double jeopardy issue. However, because we reverse Brazwell’s conviction on his first point on appeal, we do not reach or discuss his second point.
Reversed.
Thornton, J., not participating.
Notes
The Stewart court also went on to examine whether the stoр was proper under