Dowty v. State

of Arkansas Alvis E. DOWTY STATE 210 S.W.3d CR 04-1328 Arkansas Court of Supreme 23, 2005 delivered

Opinion June Firm, Miller, Miller Law Leslie and Randel for by: Borgognoni, appellant. Beebe, Gen., Heil,

Mike Lauren Elizabeth Ass’t Att’y by: Att’y Gen., for appellee. Chief Alvis E. was Appellant

Jim Hannah, Justice. convicted in Circuit Court of one count Craighead County deliver, of with intent to for which possession methamphetamine he was sentenced ato term of fifteen and a fine in years’ imprisonment of$10,000; the amount one count of possession drug paraphernalia use, with intent to for which he was sentenced to a term of three years’ $2500; and a fine of and one count of of a imprisonment possession substance, controlled for which he fined $100. The circuit court ordered that the sentences run On concurrently. appeal, Dowty that the circuit court erred in his motion argues denying suppress evidence obtained as a result of a warrantless search in connection and, with a sniff. findWe no error we affirm. Our accordingly, jurisdiction to Ark. Ct. R. pursuant 1-2(b)(5). Sup. at testimony reveals the Dowty’s suppression hearing Baxter, facts. Wes sheriff with the

following deputy Craighead Sheriff s testified that both he and the County Department Drug Task Force had received information that and two other individuals, Buckelew, Thorn and were involved in April Sherry the manufacture and sale of Baxter testified methamphetamine.

that he had received information that manufactured meth at his residence in Tennessee and amphetamine brought large area, he, Thorn, to the where quantities Buckelew Jonesboro sold it. Baxter said that the three were some of the allegedly selling addition, at a trailer on Road 318. In methamphetamine County Baxter stated that he had information that was a Dowty driving black Suburban “and that there be rental vehicles involved as well." may Baxter, 2004, who was at around 2:15

On March p.m., 318, when he near Road not on was driving County duty, Baxter believed to be and an individual April observed Dowty Am, Thorn, a black and a black Grand Suburban respec- driving it is common those involved in Baxter testified that for drug tively. for to avoid to use rental cars drugs having

trafficking transporting He further vehicles seized a arrest. their during drug personal vehicles, he he noticed that testified that at the time observed sticker. the Grand Am bore green “Enterprise” Thorn, After and Baxter contacted observing Dowty Jerry Roth, and Task Force. a fellow sheriff member of deputy Drug to follow Baxter told Roth what he had observed and continued their cars beside each Baxter observed two pull couple. Steakhouse, talk for about other in the lot of Outback parking minutes, The two then drove north five and leave lot. parking Drive, thereafter, on Southwest with Baxter following. Shortly officer, Lane, Roth and another to follow Investigator began Thorn, and and Baxter his surveillance. Roth discontinued Dowty 16, 2004, he had received information testified to March prior was involved in and Dowty trafficking distributing large Further, in the area. Roth stated amounts methamphetamine . . . that that the Task Force had “information Mr. Drug into Craighead bringing large quantities crystal County, at some of the local motels such as the Park Place Inn and staying also at Buckelew’s residence out on 318.” staying Sherry

Roth testified that he saw the their cars beside couple park each in the and walk into other lot of Western Sizzlin restaurant. At that Roth contacted McGee Investigator point, John and asked him to inside the restaurant to observe go Duncan, Thorn. Roth also contacted Brett a canine officer with the sheriffs and asked Duncan to his department, bring drug- their Raid to location. sniffing dog

Duncan testified that when he arrived at the Western Siz- zlin, first, he around the walked Raid Suburban with beginning side. Raid his nose in the seam of the passenger’s put passenger hard; however, door of the Suburban and Raid began breathing thereafter, did not alert on the vehicle. turned Raid Immediately his attention to the Am and alerted on the side Grand passenger’s of that vehicle. Duncan testified that he told Roth that Raid alerted on the Grand Am and “showed interest” in the Suburban.

Duncan also stated that he did not the “sniff’ of the complete walked Suburban because he believed that if Thorn Raid, out of the restaurant and saw him there with the two might not return to their vehicles. Duncan took back to the Raid patrol car, and he and the other officerswaited for the to couple emerge from the restaurant. and Thorn walked out of the restaurant about five

Dowty minutes after the sniff. Thorn the door of the dog Grand opened Am and sat inside while stood beside the car and talked to Dowty her. Roth and Lane and identified them- approached couple selves,followed Duncan and McGee. Duncan informed by Thorn that his had alerted on her vehicle and that he wanted to conduct a search. Duncan searched the Am Grand and discovered Thorn then was under arrest. methamphetamine. placed arrested, After Thorn was Roth to spoke Dowty, advising him that Thorn had been arrested because had been found in drugs her him, car. Roth said that asked “What does this Dowty have to do with me?” Roth then asked if he had come Dowty Thorn, restaurant with denied there with her. Dowty being Roth then told officershad Dowty observed the two at the Outback Steakhouse lot and followed them parking to the Western this, Sizzlin lot. After admitted learning Dowty that he had been Thorn. following While Roth was with Duncan speaking retrieved Dowty, Raid to the sniff of the complete Suburban. Raid alerted on the door. Officers conducted a front-passenger search of Dowty’s vehicle and found a defaced methamphetamine, handgun, digital scales,and other items of on the drug driver’sside paraphernalia the Suburban. As a result of the evidence recovered during search, was arrested. At the suppression that the hearing, canine Dowty argued

sniff of his vehicle and the search of his vehicle subsequent officers was an unreasonable search and seizure in violation of the Fourth Amendment and Article tion. He further 15 of the ArkansasConstitu- § that he was detained argued his initial upon officers, contact with the and that because to that nothing prior rise to reasonable point gave that he was engaged illegal detention activity, was unreasonable. Additionally, that even if argued detention and second sniffwere the officers did not justified, have cause for a probable warrantless and, such, search as search, prior conducting officers should have the factsto a for a presented magistrate probable-cause determination. alert on the circuit found that to Raid’s court prior Further,

Suburban, the circuit court not detained. Amendment, under reasonable found that the Fourth of a vehicle. The canine sniff prior conducting required also once the canine sniff was circuit court found that second not obtain a search the officers were required completed, search vehicle. warrant to Dowty’s that circuit court erred in

On the argues appeal, Dowty he and leave under the that was not detained was free to (1) finding Constitution, Amendment, the the Arkansas and Arkansas Fourth Procedure; and that the two canine (2) Rules of Criminal finding not a under Arkansas and “that the conflict sniffs were search law cause to a sniff results were conduct warrantless ing probable that in search resulted in contraband discovered a yet being enclosed the vehicle.” the different area of In trial reviewing evidence, denial of a we conduct a court’s motion de suppress circumstances, the review based on the of novo totality reviewing error of historical facts for clear and whether findings determining cause, rise those facts to reasonable or give probable due to inferences drawn the trial court. Sims v. weight giving State, 507, 356 Ark. 157 530 (2004). S.W.3d his that under

Dowty begins argument by contending United and both the States Constitution the Arkansas Constitu tion, officers had no basis for contact or reasonable legal Sims, to conduct the first sniff. In we held that a dog the canine sniff of of a vehicle is a Fourth Amendment exterior not 515, at search. 356 Ark. 157 at States S.W.3d 536 United v. (citing Place, 462 U.S. 693 that a sniff is “sui (1983) (concluding dog Friend, also v. See United States F.3d 548 (8th 50 Cir. generis”).1 vacated remandedon other 517 U.S. 1152 1995), grounds, (1996) that sniff of a car on a street or dog (stating parked public alley under does not amount to a search the Fourth Amendment); v. 1523 UnitedStates 10 F.3d Cir. that (10th 1993) Ludwig, (holding of random sniff vehicles in motel lot suspicionless dog parking was not a search to Fourth Horton v. Amendment); Goose subject 1 dog The court of held that a the exterior of a vehicle has sniff of does appeals similarly State, SeeMillerv. amount to a Fourth 401, Amendment search. 81 102 S.W.3d Ark.App. State, State, Willoughby Vega v. v. (2003); (2002); 56 329, 76 65 S.W.3d 453 Ark. Ark.App. (1997). 939 S.W.2d322 145, App. Dist.,

Creek Cir. Sch. 690 F.2d 470 (5th 1982) (stating Indep. sniffs vehicles of not a of on lot school are dog public parking search within Fourth State v. Amendment); purview McMillan, 100, 23 Kan. 927 P.2d 949 (1996) (holding App.2d sniff of vehicle in lot did not dog parking parked public constitute a “search” under the Fourth State v. Amendment); Garcia, 68, 2d 195 Wis. 535 N.W.2d 124 that the (1995) (holding sniff of exterior of car lot is not a motel parked search under Fourth Amendment because there is no legiti mate around air of a car in expectation privacy space public there “search” Where is no within parking lot). meaning Amendment, Fourth no reasonable suspicion necessary justify smell vehicle. 56 Ark. See having appellant’s Vega 145, 148, Thus, 939 S.W.2d App. Dowry’s Fourth Amendment first sniff must fail. argument regarding below, also he did as that the canine sniff and argues, 2, search of his vehicle was unreasonable under Article subsequent However, 15 of the Arkansas Constitution. failed to Dowty § obtain a on The this issue. circuit cited the court ruling specifically however, Fourth Amendment in its it made no ruling; finding with to the Arkansas Constitution. respect willWe not review a matter which on the trial court State, 648, has not ruled. Proctorv. 349 Ark. 79 S.W.3d 370 (2002). review,

In order to for must preserve point appellate party obtain a from the court. trial Id. Matters left are ruling unresolved waived and not be raised on Id. Because may failed Dowty appeal.

to obtain a on his ruling under Arkansas Constitu argument tion, this will court not address it on appeal. sniff, We now turn to the second which took after place and Thorn exited the and

Dowty restaurant returned to the lot. contends that he was detained Dowty from moment the first made contact him with and Thorn outside police the restaurant. He contends that because that nothing prior rise reasonable that he point gave in engaged the detention was illegal unreasonable. State main- activity, tains that was not Dowty seized his initial contact with the during the State that even police. Alternatively, that argues assuming restaurant, was seized when he from emerged seizure was reasonable it because was reasonable supported he was engaged drug-related activity. 10 into classified have been encounters

Police-citizen 67 S.W.3d 347 Ark. v. Scott three categories. is when an officer least intrusive category The first and asks if he is and willing individual on a street

merely approaches is in a the encounter Id. Because public to answer some questions. consensual, within a “seizure” it does not constitute and place second Id. The police Fourth Amendment. the meaning an individual restrain when the officer may justifiably encounter is an “articulable time if have suspicion” they for a short period Id. commit a crime. or is about to has committed that the person a seizure transformed into encounter is consensual The initially circumstances, a reasonable when, all the person considering Id. The final free to leave. category that he is not would believe cause. Id. arrest, on which must be based probable the full-scale with the that his encounter contends police He further argues into the second category. falls police-citizen free to he was not to a seizure because his encounter amounted encounter be the initial to determine whether leave. In order the level of a Fourth officers rose to tween police whether, seizure, into the critical test is taking Amendment circumstances, have com conduct would account all police was not at “that he liberty to a reasonable municated person Scott, business.” about his go presence ignore police Bostick, 777-78, v. 501 U.S. at Florida 67 S.W.3d Ark. at (citing because a not occur A seizure does simply 429 (1991)). Scott, and asks a few an individual questions.

officer approaches occurs when a Bostick, A seizure Florida v. (citing supra). supra Scott, “free to leave.” would not feel supra reasonable person Chesternut, (1988)). 486 U.S. 567 (citing Michigan accosted four that contends “[ajperson crime, been officers, told that he has in a been having implicated surveillance, another to conduct an officer instruct under hearing search, undertake to conduct and an officer a sniff witnessing dog he, search, believe that could not reasonably such a simply dog alerts, the in his car before dog the could merely ignore police, hop the officers what that after asked and leave.” We conclude him, he not with and Thorn had to do the of investigation leave, for him to believe it was reasonable that he could informed Therefore, that the circuit we hold detained. that he was being until that was not detained erred in court finding after our conducted the sniff. does second However dog inquiry police end here. determine the officers We must whether justifiably and until the detained to could perform Dowty prior The is whether the officers had reasonable sniff. question suspicion detain 3.1 of the Rules of Criminal to Rule Arkansas Dowty.

Procedure provides:

A law enforcement officer in in the lawfully any place may, present duties, his who he performance any person detain stop committed, is or is about to reasonably committing, has suspects (1) (2) commit a or a felony, involving misdemeanor danger forcible to or of or of to injury persons damage appropriation if is either such action to obtain or property, reasonably necessary the identification of the determine the verify person or to lawfulness of his officer rule conduct. An under acting may require this to in or near person remain such in the officer’s for place presence a of not than fifteen or for such period (15) more minutes time as is reasonable under the circumstances. At the end of such period restraint, detained be person shall released without further or arrested with an charged offense.

“Reasonable is . . a defined as “. based suspicion” suspicion facts or on circumstances which of do not themselves rise to give arrest, cause a lawful but which probable requisite justify is, rise to more than a bare give suspicion;

reasonable as to an or opposed purely imaginary conjectural Ark. R. Crim. P. 2.1. there is suspicion.” “Whether reasonable whether, on under the of the circum- depends totality stances, have and articulable specific, particularized, reasons be involved criminal activ- indicating person may 552, 570, Smith v. 343 Ark. 39 S.W.3d ity.” addition,

In the Arkansas has codified legislature factors to be when considered whether officer has determining detention grounds “reasonably suspect” subject person include, to, to Rule 3.1. These factors are but not limited pursuant the following:

(1) The of the demeanor subject;

(2) and manner of the gait subject; (3) the officer have back- Any knowledge may suspect’s character; ground or what he is anything, is

(4) carrying Whether suspect carrying; dressed, in bulges is including in which the (5) suspect The manner factors; in of all of the other when considered

clothing, light observed; time of the or (6) day night suspect The conversation of the suspect; overheard (7) Any involved; streets and areas (8) The particular whether are they received from third persons, information (9) Any unknown; known or with whose conduct Whether the others

(10) consorting suspect is “reasonably suspect”; conduct; known criminal The

(11) proximity suspect’s Incidence of crime in the immediate (12) neighborhood; article; The effort conceal (13) suspect’sapparent identification or con- effort of the to avoid (14) Apparent suspect frontation by police. rules are to be Ann. 16-81-203 (1987).2

Ark. Code procedural § Potter v. examined in of the circumstances. totality light 342 Ark. 30 S.W.3d 701 (2000). case, the officers had no reason contends that in this 3.1 because knew his to detain him to Rule they clearly pursuant thus, and, did not did need to detain him to his verify

identity Further, knew the lawful- states that officers identity. conduct, in that each testified that had not observed ness of his they maintains that him criminal activity. Dowty engaging any in the current General Session Act 1994 of 2005. This statute was amended by the statute will now read: Subsection law (14) avoid identification or confrontation effort of suspect Apparent

enforcement officer. officers had no reasonable to come into originally suspicion vehicle, contact with his and that the canine’s failure to following sniff, the had no alert on his vehicle the first officer during reasonable to or to detain him. suspicion stop, approach, contend that a law enforcement

Dowty appears officer detain a to Rule 3.1 if the officer may pursuant only person witnesses the in criminal activity. Dowty person engaging mistaken. Rule 3.1 that an officer detain a if may provides person committed, he that has reasonably committing, suspects person or is about to While the officers not have commit felony. may observed in criminal we believe that Dowty engaging activity, circumstances, under the the the had officers totality specific, and articulable reasons particularized, indicating Dowty may be involved in criminal activity. at the revealed testimony suppression hearing Thorn, officers had information that police Dowty along individuals,

with other were involved in and distribut trafficking amounts of in the area. SeeArk. Code ing large methamphetamine Further, Ann. (9) Baxter testified that he 16-81-203(3), (1987). § had information that a black Suburban and that Dowty driving rental vehicles also be involved in the might drug trafficking.3 information, Consistent with this Baxter observed Dowty driving a Suburban while a Grand Am following bearing “Enterprise” officer, sticker. From his as a Baxter knew that experience those involved in use rental cars to drug trafficking frequently avoid seizure of their vehicles in the event aof arrest. personal drug Given that Thorn and followed each other in their ve hicles, and talked for about five in the minutes Outback stopped lot, Sizzlin, Steakhouse and continued on to Western where beside each other and walked the they parked inside restaurant, it was reasonable for officers to believe that the two had a common Duncan’s alerted on Thorn’s Grand Am purpose. dog and a search of her vehicle revealed subsequent methamphet amine. obvious association with Thorn and his Dowty’s proximity to Thorn’s vehicle additional reasons to he was provided suspect SeeArk. Code Ann. engaged illegal activity. 16-81-203(10), § Further, (11) Duncan testified that Raid showed interest in does not he officers, nor does contend that the question credibility information Drug obtained Task Force was unreliable. first sniff. The Suburban totality during uncompleted the circumstances indicate that officers had reasonable he

to detain when and Thorn from restaurant. emerged that the two Finally, Dowty “conflicting” appears argue sniffs cannot form the basis for reasonable to search a vehicle. He states: case,

In this did alert Dowty’s first sniffof during vehicle, vehicle. the the second sniff of alerts. During Dowty’s dog sniffs, Based on a warrantless search was conducted conflicting of vehicle. No contraband was found the had Dowty’s where dog Thus, the alerted on vehicle. the alert did not hidden clearly signal contraband, and cannot be described as“sui but an intrusion generis” interests under the upon legitimate privacy Arkansas protected Constitution, 2, 15, Article our statutes and rules of procedure. § alert, animal, handler, The “error” of the or clues of the by search, means to a full-scalewarrantless simply justify utterly unsup- cause, or even reasonable ported by probable suspicion. Appellant alert, contends that after the first failed and the second following alert; sniff and that the were officers to this required present to a conflicting information before a warrantless judge conducting search. the Clearly, canine’s is in reliability question, reliability cannot be assumed to such an properly justify invasion of privacy because the a merely has “certificate.” The State failed to dog establish the reliability of which should be to dog, required Moreover, establish cause.4 probable State failed to establish the items, dog trained to alert to contraband only as to opposed non-contraband odors and as the smell of a pseudo-drugs. legal Just chemical which is used to a is not cause produce drug probable officer, animal, when smelled so it should be with the that one has not been reliable. particularly proved 4 At the hearing, Duncan testified that Raid is a German suppression Shepard from where he had been trained detect narcotics. Duncan imported Germany, already further stated that both he and eighty-hour Raid had attended an and narcotics school patrol the test at its reflecting conclusion. Certificates attendance and passed satisfactory hearing. of the course were admitted at the In State, Laime v. 347 Ark. 142, completion (2001), Eighth 159-60, 60 we S.W.3d 464, 476 noted that the Circuit Court of held, Appeals dog’s “To establish the the affidavit need state has been trained and reliability, only drugs. give certified to detect An affidavit dog’s need not a detailed account of the track (quoting (8th 1999) record or education.” Id. v. United States 186 F.3d Cir. 873, 876 Sundby, omitted). (cases

At the hearing, Dowty’s only challenge suppression failure to alert was that the during Raid’s reliability dog’s for detention. officers of reasonable first sniff deprived here, he He did not as argue questionable argue, appears canines undermines the conclusion of reliability drug-sniffing contraband where there is no sniffs detect legitimate expec only that the tation of Nor did he reliability argue questionable privacy. canines in warrants a broader

of general interpreta drug-sniffing Constitution, 2, the Arkansas tion of Article 15 of regarding § canine sniffs. This court has stated that we will repeatedly even constitutional raised for the address arguments, arguments, time 328 Ark. first on Travis S.W.2d appeal.

Affirmed. J., concurring.

Brown, the majority opinion is L. Brown, concurring. scope Ju , time, For the first this court troubling. Robert sti ce sniff Gan considers of whether be conducted on question restaurant, vehicle in a area at a when the parked public information owner received about the vehicle and metham- manufacture anwas unsubstantiated On this phetamine tip. point, Sheriff Roth admitted that the Craighead County Deputy Jerry information he had received about manufacture methamphetamine and Thorn and could have been true or it could have been a Nevertheless, lie. the concludes that based aon majority tip Thorn was somehow in the involved manufacture of methamphet- amine, a officers could run around her Grand Am vehicle police to sniff for This was done even the did officers drugs. though police not have reasonable to detain Thorn for canine sniff. Furthermore, the sniffwas not conducted in connection with a valid traffic stop. this absence of reasonable

Despite suspicion, majority the canine sniff of Thorn’s Grand Am because it approves merely was in a restaurant lot which was to the parked parking open Thus, there was no reasonable of public. expectation privacy, to the Under this all vehicles according majority. reasoning, will be to a canine sniff based on parked public places subject anonymous tips.

The United States Court on canine Supreme recently spoke Caballes, sniffs in the case of Illinoisv. 125 S.Ct. 834 In that case, Court, a canine sniff was but because it only approved occurred to a “lawful traffic and because the entire pursuant stop” incident occurred in less than ten minutes. While one police officer was in the of ticket Caballes in his process writing warning car, officer, a second who had heard about the police police stop radio, on his ran his The Caballescourt also made the police dog. that there is no interest in

point legitimate privacy illegal drugs before.us, the U.S. Constitution. In the case there protected by was no traffic lawful and no reasonable to detain stop Thorn to activate the canine sniff of her Grand Am. It was that sniff and the primarily that was resulting methamphetamine found in her vehicle that officers reasonable gave to detain and conduct a similar canine run suspicion his car. The around search is a classic of the fruit of the example tree. poisonous case,

In it this that we are not important emphasize about a canine on a lot talking where general sweep public chemicals, or other substances for explosives, mass destruction are That would be subject different sweep. categorically case, from what we face in this and I would not hesitate to affirm Here, sniffs in those cases based on the risk involved. and more subject than an unsubstantiated methamphetamine, tip should be before a sniff can be conducted in a required drug public lot. Illinois, was the case in Surely Caballesv. supra, where a valid traffic and Caballes was stop already underway detained. already reasonably that, said I with the Having that federal courts agree majority have said that there is no reasonable for cars expectation privacy See, Friend, on streets. United v.

parked States 50 F.3d public e.g., 548 (8th Cir. vacatedand 1995), remandedon other 517 U.S. grounds I (1996). also that this court’s has cited agree jurisprudence federal case law that that a canine sniff of supports proposition See, exterior of a vehicle is not a search. Sims e.g., Ark. 157 S.W.3d 530 (2004). however, is to

My preference, more in the require way reasonable than an unsubstantiated before can be tip dogs walked that, around cars in lots. said I public parking Having random, federal case law recognize sanction even appears searches of See, cars suspicionless, parked public places. e.g., Friend, UnitedStatesv. 50 F.3d 548 Cir. (8th 1995) (search warrant executed at clubhouse resulted in found on methamphetamine Friend’s sniff of Friend’s car in behind clubhouse person; dog alley extend to did not search expectation privacy 1994) 10 F.3d 1523 Cir. (10th States v. United sniff); Ludwig, for cars at a motel random use of Patrol’s (Boarder drug dog not a Fourth area for known as staying smugglers generally Amendment no violation because there is expectation legitimate Dist., 690 F.2d Horton v. Goose Creek School Independent privacy); sniff of student lockers 1982) curiam) Cir. (5th (dog (per Amendment In search). lot not a Fourth cars on school parking Friend, in terms of no Circuit couched its opinion Eighth as to a in a vehicle justifi- opposed privacy rights publicly parked on his able of Friend’s car after drugs sniff finding person. the United Court will at a later date States Supreme Perhaps under will be our further on this issue or issue preserved speak then, Until federal case for our consideration. State Constitution reason, I For that

law majority opinion. appears support concur.

Dr. FLEMING and Charles A. Amy Fleming FIRM and S. Lance Cox COX LAW 210 S.W.3d 866 05-37 of Arkansas Court Supreme 23, 2005 delivered

Opinion June

Case Details

Case Name: Dowty v. State

Court Name: Supreme Court of Arkansas

Date Published: Jun 23, 2005

Citation: 210 S.W.3d 850

Docket Number: CR 04-1328

Court Abbreviation: Ark.