Jоe Lee Pettigrew appeals from his conviction in Pulaski County Circuit Court on August 28,.1997, on charges of possession of a controlled substance (crack cocaine) with intent to deliver and second-degree battery. Appellant argues on appeal: (1) that the trial court erred when it denied his motion to suppress seventy grams of crack cocaine seized from him following a pat-down search because the search violated his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States and Rule 3.4 of the Arkansas Rules of Criminal Procedure; and (2) that the trial court erred when it denied his motion for directed verdict on the second-degree battery charge.
We hold that the pat-down search violated Pettigrew’s constitutional right to be free from unreasonable search and seizure because the totality of the evidence does nоt establish that the police had objective, specific, and articulated facts that justified a reasonable suspicion that Pettigrew was armed and presently dangerous so as to present a threat as prescribed by Rule 3.4 of the Arkansas Rules of Criminal Procedure. Therefore, we reverse and remand the conviction for possession of a controlled substance with intent to deliver and the fifteen-year prison sentence imposed thereon. However, we affirm the second-degree battery conviction and sentence of three years’ imprisonment and hold that the trial court did not err when it denied Pettigrew’s motion for directed verdict.
On December 12, 1996, Detectives Greg Siegler and Barry Flannery of the Little Rock Police Department were on patrol when they observed a bronze-colored vehicle parked in a parking lot near the intersection of 29th and Main Streets in Lithe Rock. The detectives testified that they observed a passenger in the vehicle who appeared to be drinking some type of alcoholic beverage, so they approached the vehicle to investigate. They found four men and a sixteen-year-old girl in the vehicle, and Siegler testified that he noticed open containers of beer and other alcoholic beverages in the vehicle. Siegler also testified (as quoted from the abstract):
I had everybody get out of the car, and they were all standing around the vehicle. I then began a pat-down search of Mr. Pettigrew, at which time I felt an object in the front waistband of his pants. At that time I asked him what that was, and at that time, he pushed away from the vehicle and began to run. I grabbed him by the back of his shirt. He continued to run. Finally, he turned around and hit me with his elbow and thеn hit me with his fist. I then struck him with my flashlight. He hit me again with his fist. I grabbed him around the waist and he continued to carry me down to the parking lot. At that time other members of the Street Narcotics Detail arrived. They grabbed a-hold of him. He continued to run and struggle with us. We were finally able to get him to the ground. I believe Detective Green then sprayed him with a half-second burst of OC spray. It didn’t seem to have any effect on him. We continued to struggle with him. We were finally able to get him handcuffed. Detective Gravett then removed that object that was in the front of his pants, which was approximately 70 grams of crack cocaine. . . .
When I was conducting the pat-down search on the defendant is when I felt the object in his pants. I asked him what it was, and at that time he pushed off the car and began to run. . . When he ran I did not tell him to stop. I had a hold of his shirt and he was dragging me. . . I had hold of the back of his shirt, he was running and dragging me, and I was trying to pull bаck stopping him. After we struggled with him, were finally able to get him handcuffed, and Detective Gravett removed the plastic bag with all this.
Pettigrew filed a motion to suppress the evidence seized by the police, and the trial court considered that motion as part of the bench trial. Pettigrew argued that the police lacked a reasonable suspicion for conducting a pat-down search of his person arising merely from the fact that they had seen him in a vehicle with four other persons where public drinking was taking place. The State argued that Detective Siegler conducted the pat-down search for his safety, and that the crack cocaine was initially felt in appellant’s waistband during the pat-down search. The trial court denied appellant’s motion to suppress. It later found appellant guilty of possession of a controlled substance with intent to deliver and sentenced him to fifteen years’ imprisonment.
The Fourth Amendment to the Constitution of the United States protects the right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Leopold v. State,
Rule 3.1 of the Arkansas Rules of Criminal Procedure provides that 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 conduct. In this context, a “reasonable suspicion” has been defined as a suspicion based upon facts or circumstаnces that give rise to more than a bare, imaginary, or purely conjectural suspicion. Id.
Rule 3.4 of the Arkansas Rules of Criminal Procedure states:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and pres-endy dangerous to the officer or others, the officer . . . may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others.
Rule 3.4 is the Arkansas standard for application of the holding announced in Terry v. Ohio,
On the same day that the Supreme Court decided Terry, it also decided Sibron v. New York,
Before [an officer] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.
Id. (Emphasis added.)
The Supreme Court has also stated that a frisk is only justified when the officer has a reasonable suspicion that the detainee is armed. Ybarra v. Illinois,
In the case now before us, there is no challenge to the validity of the initial police encounter between Detectives Flannery and Siegler and appellant and the other occupants of the vehicle that the detectives observed in the parking lot. The only issue is whether the pat-down frisk of appellant’s person was a constitu-tionaUy permissible intrusion into his personal security. This requires us to review the totality of the circumstances surrounding the pat-down frisk to determine whether the trial court’s denial of appellant’s motion to suppress was clearly against the preponderance of the evidence.
The totality of the circumstаnces in the record provides no “specific and articulable facts” upon which the inference could reasonably be warranted that Detective Siegler reasonably believed appellant to be “armed and presently dangerous” when he performed the pat-down search. Siegler and Detective Flannery, his partner on the encounter, testified that they were investigating what they suspected amounted tо public drinking, a misdemeanor, when they encountered the vehicle in which appellant was sitting. There is no proof that appellant did anything that Siegler deemed threatening, or that Siegler had a reason to believe that appellant was armed and dangerous at the time of their encounter. Thus, Siegler had no reason to invade appellant’s personal space in order to protect himself or anyone еlse.
The decisions of the United States Supreme Court, the Arkansas Supreme Court, and our court, as well as Rule 3.4, clearly show that before the police place a hand on someone to perform a pat-down or “frisk” search, the officer must be able to specify objective facts from which a reasonable person can infer that the person to be searched is presently armed and dangerous. The оnly constitutional justification for such intrusions into the personal space of persons detained by police is to provide protection against “any weapon or other dangerous thing which may be used against the officer or others.” Ark. R. Crim. P. 3.4. Where the totality of the circumstances fails to show objective, specific, and articulable facts that someone detained by the police is armed and dangerous, the Fourth Amеndment protects the detainee from the invasion of a weapons search because the police have no reasonable basis for placing hands on a detainee to search for weapons that no reasonable person would suspect to exist. This limitation on police conduct protects detained persons from unwarranted police intrusion into their personal liberty and security. It also protects the police from false or simply mistaken accusations by detainees of unjustified and offensive touching. Meanwhile, it fulfills the legitimate governmental interest in protecting the police and the public from the threat posed by armed and dangerous persons who, based on specific, objective, and articulable factors, pose a threat to the police or to other persons.
The State аrgues that we should reject appellant’s challenge to the denial of the suppression motion because “nothing incriminating was found during the pat-down search for weapons.” Rather, the State contends that Detective Siegler felt “an object in appellant’s waistband, but before the object could be identified, appellant fled.” By this argument, the State asserts that appellant nullified any claim that he might have otherwisе asserted in challenging the propriety of the pat-down search when he attempted to flee and created “an entirely new situation for which the officers unquestionably had cause to pursue and search him.” The decision by the United States Supreme Court in California v. Hodari,
Neither argument is persuasive. Unlike thе situation in Hodari, Detective Siegler actually detained appellant and was conducting a weapons search when he discovered the object that was ultimately seized and proved to be crack cocaine. A seizure under the Fourth Amendment had plainly occurred and a weapons search was underway when appellant struggled with Siegler and other officers in a vain attempt to escape. Siegler testified that he was grasping appellant’s clothing during the attempted escape and struggle. The search was initiated and resisted in this case, but it was never terminated. By contrast, in Hodari the police never initiated a weapons search; rather, the police saw the challenged evidence being thrown away during the pursuit of a person they had observed but never detained or searched.
Likewise, we find no merit in the Statе’s argument that the seized cocaine in this case was discovered in a valid search incident to arrest. The totality of the circumstances shows that Detective Siegler discovered the “object” that was eventually found to be crack cocaine during the course of a pat-down weapons search, not an arrest for fleeing and battery. When the pat-down occurred, Siegler had no basis for arresting appellant, having merely observed him sitting in the driver’s seat of a vehicle where the police thought that public drinking was occurring. Siegler had not seen appellant engage in any activity that constituted probable cause for an arrest. While we do not condone appellant’s conduct in attempting to escape and in striking Siegler and other police officers who helped prevent the escape, we cannоt pretend that appellant’s conduct somehow “nullified” the plainly unconstitutional search.
Based on our review of the totality of the circumstances, Detective Siegler lacked specific, objective, and articulable facts to support a reasonable suspicion that appellant was armed and presently dangerous when he conducted the pat-down search. Therefore, we hold that the trial court’s denial of appellant’s suppression motion was clearly against the preponderance of the evidence so that his conviction for possession of a controlled substance with intent to deliver must be reversed and remanded.
Appellant’s challenge to the trial court’s denial of his motion for directed verdict on the second-degree battery charge does not, however, persuade us that thе trial court’s decision was wrong. Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Bennet v. State,
A person commits battery in the second degree if:
(1) With the purpose of causing physical injury to another person, he causes serious physical injury to any person;
(2) With the purpose of causing physical injury to another person, he causes physical injury to any person by means of a deadly weapon other than a firearm;
(3) He recklessly causes serious physical injury to another person by means of a deadly weapon;
(4) He intentionally or knowingly without legal justification causes physical injury to one he knows to be:
(A) A law enforcement officer . . . while such officer ... is acting in the line of dutyf.]
Ark. Code Ann. § 5-13-202(a) (R.epl.1997) (emphasis added).
Appellant contends that there was insufficient proof that he caused a physicаl injury, which is defined by Arkansas Code Annotated § 5-1-102(14) (Repl. 1997) as the impairment of physical condition or the infliction of substantial pain.
There is no requirement that a victim of second-degree battery seek medical treatment in order to be deemed to have sustained a physical injury, for purposes of our statute that defines second-degree battery. See Gilkey v. State,
Here, the record shows that appellant struck Detective Siegler in the face. Siegler testified that he experienced pain from bruises and scrapes on his hands, face, elbows, and knees. Detective Chandler testified that he had a painful bruise on the side of his face from a blow received from appellant during the struggle to prevent his escape. Based on our standard of review, we find this evidence sufficient to compel the conclusion that the officers sustained physical injury while acting in the line of duty so that the trial court’s denial of appellant’s motion for directed verdict was proper. Therefore, we affirm that ruling and appellant’s conviction for second-degree battery.
Reversed and remanded in part; affirmed in part.