*1
Thomas
v. STATE of Arkansas
BURKS
James
CR 03-1276
Supreme 9, 2005 delivered Opinion June denied [Rehearing 8, 2005.*] September Hall, for Wesley Jr., appellant. John Beebe, Gen., Gen., Mike Vada Ass’t Att’y by: Berger, Att’y appellee.
* HANNAH,C.J., IMBER,JJ., grant rehearing. and Glaze and would Betty C. con- *2 Burks was Appellant James Dickey, Justice. deliver marijuana, with intent victed of possession thousand fined and fifty term of twenty years, to a sentenced prison that the trial, evidence moved to drug he suppress dollars. Before an interstate a traffic his car after stop had seized from police motion, now and Burks court denied the appeals. The trial highway. invalid, it was not either because traffic was He that the argues of racial or because it was the cause product by probable supported a ran drug detention while police and that his continued profiling, Fourth in violation of the car was unreasonable around his dog 3.1 We affirm. Ark. R. Crim. P. (2004). Amendment and Matthew and Olen Craig Deputy Arkansas State Trooper s testified with the Sheriff LaMora Crawford County Department At to the set of facts. 2:56 morning, Craig following side of the saw LaMora were on the they highway parked to exit of the road before over Burks drive off the left side swerving intoxicated, he be on the that Craig Concerned might right. but unable to determine if he followed Burks to a station was gas LaMora, now near the He radioed who was parked impaired. he watch for Burks’ entrance to the highway, suggested to follow Burks re-entered the LaMora When highway, began later, a him. About a of a mile he failed to obey “Merge quarter Now” and LaMora him over. sign, pulled rental
Burks handed LaMora his license and the agreement The rental that the car the car that he was driving. specified be driven due to be returned the before and that it was not to day Arizona, he outside of but Burks told LaMora that was California east to visit New York Burks anxious to LaMora driving City. ran a check and evasive with his answers. LaMora went to patrol and discovered that he had been arrested for a firearms on Burks’ license Burks, LaMora handed him a ticket and offense. warning Returning him consent to a search of his car. Burks if he would When refused, him that he to run a LaMora advised drag dog around the rear of around the outside of the vehicle. The alerted car; the tmnk and found of Burks’ LaMora opened seventy pounds inside. marijuana invalid because
Burks first
that the traffic
argues
not
cause. In order to make a valid
it was
supported by probable
believe
traffic
officer must have
cause to
probable
stop,
police
Ark.
law has been violated. Laime v.
cause is defined as “facts or circum-
S.W.3d 464
Probable
stances within a
officer’s
that are sufficient to
police
knowledge
of reasonable caution to believe that an offense has
permit
Here,
been committed
Id.
LaMora
by
person suspected.”
testified that he saw Burks drive
Now”
without
past “Merge
sign
a traffic control device is a violation of
merging. Failing
obey
Ark.
Ann.
Code
27-52-103
Burks’ traffic
1994).
(Repl.
§
cause and was
valid.
supported
probable
legally
Burks also
the traffic
was invalid
argues
because it was the
of racial
State v.
product
profiling. Citing
Segers,
valid, the
evidence should
drug
nonetheless be
because
suppressed
detained while LaMora ran the
unreasonably
drug dog
around his car. Ark. R. Crim 3.1
addresses the
of a
validity
detention without arrest:
A law enforcement officer lawfully
in the
may,
place
duties,
performance
detain
who he
any person
committed,
reasonablysuspects
has
committing,
or is about to
commit ... a
. . . An
felony.
officer
under this rule
acting
may
to remain in
require
or near such
place
officer’s
presence for a
of not more
period
than fifteen (15) minutes or for
such time as is reasonableunder the circumstances. At the end of
such
period
person detained shall be releasedwithout further
restraint, or arrested and
with an
charged
offense.
Reasonable
is a
based on facts or
suspicion
circumstances
“suspicion
which of themselves do not
rise to the
cause
give
probable
requisite
arrest,
a lawful
but which
justify
rise to more than
bare
give
is,
that is
suspicion;
reasonable as
to an
suspicion
opposed
Ark.
imaginary
purely conjectural
R. Crim P. 2.1.
suspicion.”
facts,
Reasonable
and it
exists when
depends
objective
circumstances,
“under the
of the
totality
police
specific,
and articulable reasons
particularized,
that the
indicating
person may
be involved in
Laime,
police pulled lane. When driver and the van’s asked officer separately police were both said they were its where they going, passenger friends, each but dinner with some Rock to have to Little driving were and where they the friends the other knew who said that nervous and more Id. The van’s driver became to meet them. were and became quite angry as the traffic stop progressed agitated addition, Id. In the vehicle. to search the police permission the driver had conviction that check revealed a drug background rise held that these facts denied This court gave having. previously Id. to reasonable suspicion. Sims, a valid traffic made midday, during supra, nervous and noticed that the driver was sweating
police that he volunteered an odd comment about it was thought strange After been set. to Wal-Mart buy swing telling having just over, the then decided to run a that the traffic drug police to detain around the car. We held reasonable exist, does not did not because nervousness alone give primarily rise to reasonable Id. suspicion. like Laime than
This case more Sims. Although nervous and LaMora noticed that Burks agitated, *4 to detain. The observation was not sole basis of his decision rental that Burks handed LaMora that the car specified agreement it was not to be driven outside of and Arizona and that California was due to be returned in California the before the traffic day stop occurred. Burks was not the car outside only driving states, in the he was half a continent heading away, permitted direction, after the car should have so day opposite doing at oral that this could been returned. The State suggested argument was stolen. LaMora reason to that the vehicle given suspect circumstances, we hold that these facts Under the of totality reasons” that establish and articulable “specific, particularized, was afoot. activity 436, State, from v. 362 Ark. This case is Lilley distinguishable the traffic In we focused on when (2005). 208 S.W.3d Lilley, not exist based was over and held that reasonable did nervous, on the fact that his car smelled like air freshener, travel, the rental was for and the car one-way name, was rented in another was listed as person’s although Lilley whole, an additional driver. Taken as a these facts are seemingly contrast, innocent. In the facts in the case at the time the was over that the rental car had been suggested stolen because it was not overdue but was also driven far only being away from the area in which it was meant to be returned. Burks maintains that the
Finally,
use of a drug dog
violates the
unreasonable
prohibition against
searches and seizures
found in the Fourth Amendment of the United States Constitution
2,
and Article
section 15 of the Arkansas Constitution. The use of
a traffic
does
drug dog
not constitute an
during
search
illegal
under the
Caballes,
federal constitution.
Illinoisv.
125 S.Ct.
Affirmed. C.J.,
FIannah, JJ., Imber, Glaze dissent. This Justice, case is Tom Glaze, dissenting. in hopelessly conflict with several decisions this court has handed down months, court, in recent reason, but the for whatever is reluctant to and follow those apply now. controlling legal precedents At issue in this case is whether officers can continue police for a — — detain a person traffic offense properly stopped after officer tasks, certain routine completed such as computerized checks of the vehicle’s license, and the registration driver’s as well as the driver’s criminal and the history issuance of a citation or has, This court in clear warning. held “no.” See language, Sims, court, S.W.3d 530 3.1,1 on Ark. R. Crim. P. relying held once the legitimate over, of a valid traffic an officer must have a Arkansas Rule of Criminal Procedure 3.1 states, as follows: pertinent part,
A law enforcement officer lawfully present any place may, performance his duties, and detain who he committing, has reasonably suspects or is committed, about to commit... a acting officer under this rule felony____An *5 to remain in or near such in may the officer’s require person place presence (15) a of not more than fifteen minutes or for such time as is period reasonable under has is committing, that he stopped reasonable person suspicion a misde committed, (2) or (1) about to commit felony or is or to danger property.* meanor involving persons to Sims’s Sims, the facts court leading up our reviewed connected arrest, than mere that more conjecture and held nothing or a misdemeanor the commission of felony Sims with officers’ or The forcible injury property. involving persons in showed the following: Sims testimony because of a Daniel Sims over” Officer (1) Willey “pulled nervous and described as defective brake Sims was light. appearing him when Sims out not to what was telling got listening Willey his car. The officer averred that he it was thought strange
(2) and, time, the same offered the statement to sweat at began been at Wal-Mart to look at set. he had swing Sims, who Sims where (3) going, Willey had “a friend” had on his that he Illinois said picked up tags named Kimbrough Kimbrough Mississippi; passenger do some Sims’s car. Sims said yard Kimbrough However, work told a differ- for him. Officer Kimbrough Willey — ent “brother.” that he with his traveling story (Kimbrough) asked for could birth certificate when Kimbrough produce only identification. a criminal check on both Officer also ran
(4) Willey history Sims and which revealed both men had Kimbrough, prior arrests. drug officer, Alexander, on the Another Beverly
scene and wrote Sims for a defective up citing having warning, brake light. At the shall be released the circumstances. end of such detained period person charged restraint, with without further or arrested an offense. define as on facts or criminal rules a “reasonable “a based Our suspicion” suspicion give justify of themselves rise to the a lawful
circumstances which do not cause probable give which rise to more than that is a that is reasonable as arrest, but bare suspicion; Ark. 2.1. imaginary conjectural to an R. Crim. P. Reasonable purely opposed suspicion.” whether, circumstances, under the totality police depends indicating that be involved in and articulable reasons specific, may particularized, Laime v. S.W.3d 142, 60 See activity. *6 returned Officer then Sims’sidentification infor- (6) Willey vehicle, mation and start to him let him back to the walking because the “traffic done.” however, then to
(7) Officer Willey, promptly proceeded ask Sims if he had in and his vehicle Sims said that illegal anything asked, he did not. “Would me consent to Willey you search give vehicle?” Sims “I don’t time to your have for responded, you search.” That raised and response Willey’s suspicions, Willey decided to hold Sims to run his long enough drug-detection dog and, result, around Sims’s The alerted on the aas the dog officers found and seized from cocaine inside the car. above,
Based on the facts and circumstances listed the trial court in Simsreviewed the officers’ testimony they questioned (1) driver’s license and car regarding (2) registration, where Sims was Sims’s going, demeanor the during stop; these facts Officer led to Sims’s consent to a search Willey request of his car. The trial court to steer clear of considering whether the circumstances set out the officers gave reasonable at the the conclusion of valid traffic so as to permit Instead, them to continue to detain Sims. the trial court found and held detention, an where officer had justification no reason, needed for canine justification sniff. For this trial court denied Sims’s motion to suppress.
On
this court
with
trial
disagreed
court and
appeal,
held
Officer
did not
squarely
Willey
specific, particu-
larized, and articulable reason
that Sims was
in
involved
indicating
Therefore,
criminal
any
drug-related
activity.3
continued de-
tention for the
sniff was unreason-
conducting
dog
able.
If the reader still has
doubt that the
in Simsdoes
holding
case,
not
control the
directly
doubt should be
fully
our
allayed
most recent case of
by reading
Lilley
436,
terstate the car on Lilley’s Bowman so he over. Lilley approached pulled a odor of air talk, smelled to and Bowman strong side passenger also noticed The officer the car window. freshener through drinks, “to which were Lilley keep was drinking energy Lilley awake.” asked for driver’s license Officer Bowman
(2) Lilley’s and, to him because it was asked raining, vehicle paperwork to testified that he was him the Bowman patrol accompany issue written to Lilley warning. ran the checks and talked with Officer Bowman usual (3) on his to visit his volunteered Lilley Lilley way mother in Chesapeake, Virginia. said that he was from California and worked as
(4) Lilley farmer, as odd.” which Bowman said “struck him Bowman found a car rental from Cali-
(5) one-way agreement fact said to fornia to the he Virginia, Lilley despite planned return to California. The showed the vehicle had been agreement Haller, rented to a William who was not The present. as an additional driver. said that he
reflected Lilley Lilley planned vacation; to back to after he further drive ten-day California him that Haller had rented vehicle for because Lilley explained had no credit card. After Officer Bowman warn- (6) writing Lilley’s completed citation, At that Bowman handed back everything Lilley.
ing
if
Bowman asked
he had anything
point,
Lilley
that he asked because of
illegal
Bowman
his earlier
vehicle.
said
(1)
renter,
freshener,
air
detection of
of
the car
(2)
fragrance
vehicle,
Haller, was not in
travel
one-way
agreement,
also
if
nervousness
worse. Bowman
asked
(4) Lilley’s
Lilley
got
said,
car,
he had
or dead bodies
which Lilley
any guns
“No,”
contact with Bowman. When asked if he
while keeping eye
car,
and said in a softer
had
in his
looked
marijuana
Lilley
away
tone, “No.”
looked back when Bowman asked if he
Lilley
had
up
car,
said,
cocaine or “meth” in the
and he
“No.”
he
(7) Officer Bowman then
if would consent
Lilley
vehicle,
to search
his
refused. Bowman had a
Lilley
“drug
back
seat of the
and conducted a
dog”
canine
patrol
trunk,
sniff. The
alerted to
where Bowman
found and
Lilley’s
seized three duffel
of marijuana.
bags
Our court
the State’s submission of the
rejected
foregoing
facts as valid factors or
reasons
Officer Bowman reason-
giving
able
to detain
further after Bowman concluded the
Lilley
of
traffic offense
Lilley’s
cita-
investigation
by issuing warning
tion. This court reasoned in
that nervousness alone does not
constitute reasonable
of criminal
See
Laime
activity.
142, 155,
60 S.W.3d
473 (2001). Our court
also concluded that there was
about
nothing inherently suspicious
a car
rented
third
even
using
when combined with the
party,
Beck,
nervousness
See UnitedStatesv.
This now case before our court has striking similarities to the Here, facts in both after Crawford Lilley. County Deputy Sheriff Matthew LaMora Burks stopped failing merge James 40, left before a construction on zone Interstate LaMora asked Burks for his driver’s and car license Burks told registration. LaMora that the car was a rental and the officer the rental gave LaMora found agreement. Burks was not under the influence of controlled substance. LaMora then where any asked Burks was Burks he was “out east.” LaMora heading; replied noticed going 24, the “return” date on 2002, the rental was the April destination, before traffic the When day offense. again Burks said that he to New York. LaMora going Though inconsistent be answer to suspicious that he found testified “east,” New the he statement Burks’s with York, is, previous indeed, east of Arkansas. that he hearing at the testified suppression LaMora Officer car that a rental Burks was driving because
became suspicious 24, 2002, Burks was driving on to be due April in the rental agreement. reflected limits the outside geographical that an indication that this was at oral argument The State urged be a or would felony the which been stealing Burks could property. forcible injury persons involving misdemeanor First, bears Burks’s the rental agreement This argument specious. from which license, identification address, and other driver’s Burks; Burks’s locate use to find or could rental officer or company cer- to LaMora this information in willfully providing behavior Second, a car thief. behavior of with the seems inconsistent tainly error scrivener’s by reflects an also apparent the rental agreement car on rented the it shows Burks April in that the company, week, car due on April in full for one making and paid 24, 2004, Officer due date used 30, 2004, well after the April Third, violated the rental agreement, even if Burks LaMora. contract, of the he breached the terms parties’ fact shows only to the one call felony. Clearly, phone not that committing resolved regarding could have any questions rental company car case, of Burk’s even though unlawful because its nevertheless became it lawful at its inception, be Burk’s right of execution unreasonably infringed manner Caballes,125 was over. See on his once way, purpose the State’s in this case was justified by at The seizure S.Ct. 837. however, ticket; unlawful it became warning interest issuing the time reasonably required “it beyond because prolonged [was] Id. Once that mission.” to complete and articulable over, had no LaMora specific, particularized, Burks was base a reasonable on which to facts *9 such, the use of As or violent misdemeanor. a felony committing 3.1, and the trial Rule Burk’s vehicle violated to sniff the drug dog sum, Burks’s motion to suppress. court erred denying recent this court’s very from case glaring departure represents reconciled, it is This court law; wrong. cannot be case it simply overturn them. either follow Sims Lilley, should Imber, Hannah, this dissent. J., join C.J.,