Lead Opinion
Aрpellant, James Hoay, pleaded guilty to the crime of possession of methamphetamine and was sentenced to eighteen months in the Arkansas Department of Correction to be followed by five years’ suspended imposition of sentence. Pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, he appeals from the circuit court’s denial of his motion to suppress evidence seized from him, arguing that the court erred in concluding that the police had reasonable suspicion to stop his vehiclе. Further, he argues that because he was arrested on an invalid arrest warrant after the stop, the items seized in the search incident to that arrest should be suppressed. We agree with appellant’s latter argument and reverse and remand.
Jeff Midgett of the Clay County Sheriff s Department testified that on July 9, 1999, during daylight hours, he followed a gray Chevrolet pickup truck for approximately two miles as it traveled south on Highway 135. While following the truck, he saw the truck move to the right of the fog fine, cross the center fine twice, and then drive tо the right of and over the fog line for approximately one-half to one mile. Midgett testified that he stopped the truck because he believed that the driver could have been under the influence of intoxicants or a controlled substance.
As the truck pulled to the side of the road, Midgett saw the driver “doing a lot of frequent moving around, bending over . . . toward the floorboard. ...” Midgett walked up to the driver’s side of the truck and asked appellant, the sole occupant of the truck, for his license. Midgett did not “smell any odоr of alcohol at that time.” Through his own dispatcher, Midgett checked appellant’s license with NCIC, which, according to Midgett, is a nationwide list of persons who have felony warrants for arrest, and found that a warrant for appellant’s arrest had been issued in Greene County. Midgett then contacted two different dispatchers for Greene County, one by telephone and one by radio, and Midgett was informed by both dispatchers that they possessed an arrest warrant for appellant based on his failure to appear on a felony charge for possession of a controlled substance.
Midgett asked appellant to step out of his truck because he had a warrant for his arrest. After Midgett handcuffed appellant, he saw a bulge in appellant’s sock near his ankle. He removed from the sock a clear plastic bag containing a smaller plastic bag that contained a rock-like substance he believed to be methamphetamine.
Midgett testified that this search was incident to appellant’s arrest оn the warrant, and he arrested appellant only on the warrant. Midgett also testified that if it had not been for the warrant, he would have had appellant perform a field-sobriety test because appellant’s speech was slurred.
Appellant, however, introduced a docket sheet showing that the arrest warrant was issued on February 11, 1999, and set aside on April 20, 1999. Midgett testified that he did not know that the warrant was set aside, that this was his typical method for verifying warrants, and that he had no problems with Greene County in the past, as hе had made several felony and misdemeanor arrests on Greene County warrants.
After hearing the arguments of counsel on appellant’s motion to suppress, the court determined that because of appellant’s erratic driving, Midgett properly stopped appellant’s truck. The court further determined that in making the arrest on the invalid arrest warrant and searching appellant incident to that arrest, Midgett acted in good faith. Consequently, the court denied appellant’s motion to suppress.
First, appellant argues on appeal that Midgett lacked reasonable suspicion to stop his truck, and therefore, the evidence seized during the search of his clothing should be suppressed. In reply, the State argues that appellant’s driving gave Midgett reasonable suspicion to believe that he was driving while intoxicated.
[ls 2] We conclude that, based on the totality of the circumstances, Midgett had reasonable suspicion to stop appellant for driving while intoxicated. Pursuant to Rule 3.1 of the Arkansas Rules of Criminal Procedure, “[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) a misdemeanor 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 conduсt.” In reviewing the denial of a motion to suppress, this court makes an independent examination based on the totality of the circumstances. Frette v. City of Springdale,
Second, appellant contends that the substance seized should be suppressed because he was arrested on an invalid аrrest warrant, and therefore, the search was not incident to a lawful arrest. In response, the State argues that the good-faith exception to the exclusionary rule applies, thus saving from suppression the evidence seized during the search incident to his arrest.
We conclude that the State’s failure to present evidence regarding why the invalid warrant remained outstanding, particularly, whether it was the fault of the police or the court, precludes application of the good-faith exceptiоn to the exclusionary rule. In United States v. Leon,
The prosecution carries the burden of estabbshing the applicability of the good-faith exception. United States v. Leon,
As an alternative basis for affirmance, the State argues that even though Midgett did not arrest appellant on a traffic violation and the sole basis for the arrest was the invabd arrest warrant, because there was probable cause to arrest the appellant for violating traffic laws in the presence of the arresting officer, there was an independent basis for appebant’s arrest. Citing Atwater v. City of Lago Vista,
Specifically, the State argues that appebant violated Ark. Code Ann. § 27-51-301 (a) (Supp. 1999), which provides that “[u]pon ab roadways of sufficient width, a vehiсle shab be driven upon the right half of the roadway. ...” and Ark. Code Ann. § 27-51-302(1) (Repl. 1994), which provides that “[w]henever any roadway has been divided into two (2) or more clearly marked lanes for traffic, ... [a] vehicle shab be driven as nearly as practical entirely within a single lane and shab not be moved from the lane until the driver has first ascertained that movement can be made with safety. ...” We conclude, however, that the evidence presented at the suppression hearing was inadequate to determine whether there was probable cause to befieve that appebant violated the two statutes. Specificaby, there is no evidence that appebant did not first ascertain that movement could be made with safety. Lacking this evidence, we cannot say that the arrest and subsequent search may be justified under this analysis.
Reversed and remanded.
Concurrence Opinion
concurring. I agree to reverse and remand in this case because it is plain that appellant was arrested on an invalid warrant issued by governmental agencies. Further, it is the State’s burden to demonstrate that the good-faith exception is warranted. See McGhee v. State,
While I agree with the result reached in this case, I write separately to state my belief that through Leon, supra, and its progeny, the United States Supreme Court hаs propounded a hypertechnical and extra-Constitutional rule whereby application of the good-faith exception turns on whether the error results from a mistake by the police, as opposed to some other governmental entity. Leon and Evans purport to limit application of the good-faith exception only where the deterrent purposes of the Fourth Amendment are furthered by its application. Such a rule disregards the fact that the purpose of the Fourth Amendment is to providе prophylactic protection against unreasonable searches and seizures by the government. See United States v. Verdugo Urquidez,
However dutiful the officer may have been in following police procedure when effеcting appellant’s arrest, the decisive truth is that there was no constitutional justification for appellant’s arrest. Therefore, we should not decide this and similar cases on the supposed “good faith” of the police, nor should it matter whether a warrantless search or seizure occurred because the police or other governmental agent has followed agency procedures. The Fourth Amendment is not the servant of the government nor does it exist to protect governmental procedures. Sadly, judges are now forced by the Leon and Evans holdings to pigeonhole governmental conduct that plainly results in an unreasonable search and seizure in order to determine whether such conduct will be sanctioned under the Fourth Amendment.
concurring. I agree that the evidence seized from appellant after his arrest (on an invalid warrant) must be suppressed. I write separately to emphasize that the arresting officer acted properly in making the arrest, and would have been derelict in his duty had he not made the arrest. I also write to point out that the decisions of the Supreme Court of the United States in United States v. Leon,
Although the Evans court declined to address the issue of whether one police agency could rely on faulty information from another police agency in good faith, the Court’s reasoning leads me to the conclusion that it may not. In discussing the applicаtion of the exclusionary rule the Court noted:
The question of whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.
Id. at 10 (quoting Illinois v. Gates,
The exclusionary rule is a remedial device whose application has been restricted to instances where its objectives are thought most efficaciously served. Leon, supra. Deterrence is the only objective of the rule, and “[w]here ‘the exclusionary rule does not result in appreciable deterrence, then, clearly, its use ... is unwarranted.’ ” Evans,
The next logical extension, whether excluding evidence obtained as a result of a court clerk’s error could promotе the goal of deterrence, was considered in Evans. The Court denied application of the rule when it was shown that an invalid warrant was left in the computer system by an error of a court clerk. The court reasoned:
[T]here is no basis for believing that application of the exclusionary rule in these circumstances will have a significant effect on court employees responsible for informing the police that a warrant has been quashed. Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, they have no stake in the outcome of particular criminal prosecutions.
In the instant case, Deputy Midgett relied on the NCIC computer reading and the information obtained from the Greene County Sheriffs Office. The State failed to introduce evidence еxplaining why the warrant (that had been invalid for some three months) was not removed from NCIC after its quashing. Unlike in Evans, we do not know if the error is attributable to the Greene County Sheriffs Office or to the county’s court personnel. Although the State has failed to identify who in Greene County is responsible for the delinquent record-keeping, it is obvious that Clay County is not implicated in the error. It is tempting to conclude that excluding evidence as a result of an error in Greene County will serve no purpose in deterring unlawful searches by law enforcеment officers in Clay County. However, it is my opinion that the acknowledged Fourth Amendment violation in Greene County cannot be immunized by merely passing it along to Clay County. Therefore, I conclude that because the Greene County sheriff s officers are part of the “law enforcement team” referred to in Evans, the deterrent effect of the exclusionary rule is applicable and appropriate.
Although I hope that the net result of this decision is not to deter officers like Deputy Midgett from performing their duties in a reasonable manner, I believe that the Constitution requires law enforcement to act on reliable information. As pointed out by Justice O’Connor in Evans, “ [c] ertainly the reliability of recordkeep-ing systems deserves no less scrutiny than that of informants.”
Dissenting Opinion
While I with the majority that Officer Jeff Midgett had reasonable suspicion to initially stop.appellant, I disagree with the holding that the exclusionary rule requires the reversal of the trial court. I would affirm the denial of appellant’s motion to suppress on the good-faith exception to the exclusionary rule.
In United States v. Leon,
We have frequently questioned whether the exclusionary rule can have any deterrent effect when the offending officers acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment. “No empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect. . . .” But even assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.
Although Leon dealt with the exclusionary rule relative to the suppression of evidence obtained in a search pursuant to a searсh warrant that was subsequently held to have been invalid, the reasoning of the case was adopted and quoted in Arizona v. Evans,
The majority opinion of the instant case places the burden on the prosecution to prove who made the error in not removing the quashed warrant from the computer. The defendant introduced the only evidence regarding the warrant being invalid, which was a copy of the court docket sheet showing the warrant had been quashed. The Evans decision reversed the Arizona Supreme Court decision that held that the exclusionary rule required suppression of the evidence even if the faulty information resulted from an error committed by an employee of the clerk of the court. The Evans court held:
If court employees were responsible for the erroneous computer record, the exclusion of evidence at trial would not sufficiently deter future errors so as to warrant such a severe sanction. First, as we noted in Leon, the exclusionary rule was historically designed as a means оf deterring police misconduct, not mistakes by court employees. Second, respondent offers no evidence that court employees are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.
The Court seems to place the burden on the defendant to show that court employees ignored or subverted the Fourth Amendment or that there was lawlessness among the actors in order to impose the extreme sanction of exclusion of the seized evidence. In the present case, there was no evidence that either court employees or law enforcement personnel were inclined to ignore or subvert the Fourth Amendment.
In Evans, the United States Supreme Court only held that the good-faith exception to the exclusionary rule supported a categorical exception for clerical errors of court employees; it did not make a ruling regarding errors that rest with law-enforcement personnel for failure to remove a warrant from the computer, and it did not have that question before it. In Evans, the Supreme Court cited its decision in Leon, supra, holding:
[W]here the officer’s conduct is objectively reasonable, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that . . . the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty.
In my opinion, there was nothing more the arresting officer in the instant case could have done except ignore the outstanding warrant and that would have been a clear dereliction of his duty. I am also not convinced that the suppression of the contraband discovered in Clay County due to an error committed by someone in the Greene County court system or by its law enforcement personnel would have any deterrent effect on the law enforcement personnel of Greene County, which is not the county where the arrest was made and the case was tried.
When the identity of the persons who failed to remove the warrant from the computer is unknown, and until such time as the United States Supreme Court or the Arkansas Supreme Court holds that the seized evidence should be excluded in spite of the fact that the arresting officer exercised exceptional care in determining that the warrant was truly outstanding before he made the arrest, I intend to vote to affirm such convictions.