*1 no evidence OWI should theft. from presented key Mergen his truck from would steal his key have the boys foreseen left fact, that he had In testified previously Mergen jacket pocket. incident, even coat without his in his or unattended keys jacket so. he there was a risk doing stated that knew though Mergen exercise care assume would some OWI had the right Mergen a brief reference his for for Finally, except personal property. its motor-pool keys the break-in of box where OWI kept time, criminal no evidence of activity one Mergen any presented OWI on notice that at OWI sufficient employ- place occurring from was not safe criminal acts by ees’ personal property burden, failed to Because cаrry elementary juveniles. Mergen I would reverse.
Brown, this dissent. joins J.,
STATE of Arkansas Albert BELL
Winston Vada by: Att’y Bryant,Att’y Berger, for appellant. Green, for Jr., appellee.
J.W. relat- L. This is the second appeal Brown, Robert Justice. Bell. and to of conviction of Albert Sims Terry ing judgments Albert Bell statements to law enforcement officers confessing gave Lou Russell Cloud’s murders Mary Jones Julian Casscoe, At the trial in Arkansas County. ensuing Store Grocery Bell, to he was of both murders sentenced of Albert convicted We for the limited two life sentences. remanded pur- consecutive failed to because a new hearing prosecutor pose suppression Allen, who make available State Police Gary allegedly Sergeant in the to Officer McCord’s “good “bad cop” played cop” John of Bell. See Bell v. police interrogation in decision that a new trial We said warranted in the event that Bell’s statement was would be trial on Bell’s court remand. remaining points suppressed this court. on were rejected appeal remand, an Bell filed amendment to his Following motion, motion to In the that he was suppress. complained allowed consult not with counsel despite requesting speak and, further, with allowed consult not his attorney par- ents. Bell also of the each statements was complained “[t]hat Procedure, taken in violation ArkansasRules Criminal spe- Rules 2.2 3.5.” At cifically through suppressiоn hearing remand, State Police McCord testified that Investigator he John Bell, first who was spoke 1993. Officer age McCord testified on that he and State Police Officer day, Franklin waited at the for Lloyd School Bell to be Stuttgart Fligh dismissed from class. He testified that he had told Bell in the prin- office he did have to the Arkansas cipal’s go County Sheriffs out, with them. When school was Department officers called Bell and Sims to an over unmarked car them the seat. placed back then drove the two They young men to the sheriff s for After department questioning. leaving school, Officer McCord did not tell Bell high that he was again *4 free to leave.
Bell’s interview the sheriffs took about department minutes and his mother was with him the interview. during Officer McCord testified that Bell not a was at this time suspеct and was free to leave. He admitted that the Sims left sheriffs time was chased It department during officers. by police later was revealed that Sims returned on his own. Officer McCord testified that did he not read Bell his Miranda at this time warnings Rather, because Bell was not a he suspect. Bell questioned because Bell was friend of Sims and because Bell had been seen the near store about the time of the murders. Bell denied being with Sims on the of the murders. day Sheriff David Box testified that
Deputy he was instructed to 1993, locate Bell on him the January sheriffs bring and Bell at Bell’s He found Sims for questioning. department house, under arrest or were not but placed they grandmother’s had the two men testified that if young Box handcuffed. Deputy him, the sheriff for he have radioed with would rеfused to go and Bell that he did not tell Sims admitted that instructions. He him. did not have to accompany they Bell a second that he interviewed McCord testified Officer 8, 1993, Bell was considered a sus- but this time time on January focus on Sims on the He testified that investigation began pect. when had inconsistent times because Sims given Store. The state to Cloud’s Grocery he returned a videotape a .22 was missing also stated that Sims’s neighbor officer revolver, in the caliber of the used Casscoe which was the gun he understood his that Bell murders. He added acknowledged 1993; that he Miranda agreed speak rights him; Miranda and that he initialed warnings separate taken from In the first statement the waiver of form. rights signed denied that he was with Bell on January repeatedly Howevеr, the murders. Officer McCord on the Sims night brother, Bell, Albert Bell’s day knew that Eddrick previous Eddrick Bell Bell with Sims on had night question. placed Bell at about 7:00 officers that Sims up told picked statement, Bell with this When confronted evening. p.m. and that he that he had been with Sims accompanied admitted He further told the Store. interrogating Sims Cloud’s Grocery the car and saw Gillmore shoot officers that he sat in Jeanette store and that Sims ran out of Russell in the grocery Julian was in store while the shooting progress. never related at the that Bell asked McCord hearing Officer terminate the interview on January or to to stop questioning for a He estimated and that he never asked lawyer. officer or less. After he talked with Bell for hour interview, Bell turned over to State Pоlice his completed for a examination. Howell Investigator polygraph John *5 at the Howell hearing Officer explained suppression John he exam. He testified that that Bell to take the agreed polygraph that a Gillmore had done about Bell’s statement inquired Jeanette that the test but Howell stated Officer shooting, polygraph Bell told his answers. showed that Bell was with being deceptive if that he tell the truth allowed Officer Howell would speak talk after with first. He was told that he could to Sims only Sims that shot the he told the truth. Bell then told Officer Howell Sims Bell victims: lost it started wanted “Terry just shooting.” time, him that make a that Officer Howell informed plea had the to a attorney authority prosecuting agree plea. Sims, Bell was allowed to he told he Sims that was speak to tell the truth what Sims going Terry say.” “regardless truth, then to tell the and he confessed to two agreed shooting victims. Officer had first did McCord testified that he not John
believe he had cause to arrest Bell on 1993. January date, When he retook the at a he stand later testified it that was but he “borderline” there was cause to arrest on thought 8, 1993. January
State Allen testified that he in” sergeant Gary “sat on He denied that he January interrogation. conducted the interview or threatened or coerced Bell to make a statement. He did admit to Bell that he was telling lying.
Bell took stand at the did his as suppression hearing, par- ents, who testified that were excluded from they the January 1993 interview. Bell denied that he what knew a Miranda right wаs. He admitted that he had a offender juvenile but history denied he had ever been read his Miranda rights previously. He stated that he had since learned of his Bell rights prison. admitted that Officer McCord read him his rights January 1993, but he stated that Officer did McCord not what explain those meant. Bell admitted that he initialed rights the paragraphs on the waiver form and it because he was told to do so. He signed further stated that he He did think he attorney. requested could leave on 8 because the officers had chased Sims he when left the sheriff’s 5. department cross-examination,
On admitted he was that he told silent, had the to remain but he felt right to answer the compelled that were asked He questions to him. further being testified that *6 but read in television he had heard Miranda wаrnings programs that he them. Bell admitted that he did not understand revealed He also indicated that of his did not ask for rights. explanation him as a had been to juvenile. at least some of his explained rights he understood the words of the Bell added that while he warnings, meant. did not understand what they entered its order and concluded that Rule 2.3 The trial court when Bell was from school was not picked up high complied Moreover, he not advised 1993. was for on January questioning that date. The trial court observed of his Miranda on rights with when Bell was for Rule 2.3 was also not up complied picked Nor, court, 8, 1993. to the trial according January questioning him at that time. did have cause to arrest officers The court then stated: taken
The record does not reflect effort state any by nor efforts the state to determine any by with Rule 2.3 comply whether the waiver executed the defendant was made with a by abandoned full awarenessof both the nature of the rights being them. and the decision to abandon consequences However, that he the court that Bell acknowledged agreed when were read to him. understood his they rights The the statements made Bell on both court suppressed 5 and and the State has January January appealed order. 2.3
I. Rule P. The State first that violation of R. Crim. disagrees 2.3 Rule 2.3 states: transpired.
If a law enforcement officer to this rule acting pursuant station, come to or remain at a requests any person office or other similar he shall take attorney’s place, prosecuting is no such as arereasonable makeclearthat there steps legalobligation with sucha request. comply three added). Ark. R. Crim. P. 2.3 State malees (emphasis under the consideration of (1) arguments point appeal: doctrine; 2.3 barred the law-of-the-case the trial (2) was that Rule 2.3 violated on court erred was concluding 1993; violation Rule 2.3 on (3) any *7 because was cause to arrest Bell that immaterial there probable time.
Law case. of The State that Bell on remand from contends was barred that there was a Rule 2.3 because he failed violation arguing result, that in his first con- As State argue point appeal. tends, the asserted error was barred the doctrine of law case. Bell answers that the State’s is not for argument preserved because it was not raised in the court. trial While the State appeal that the contends is Bell it argument jurisdictional, that is urges an affirmative defense. merely
Bell is that correct the law-of-the-case defense cannot be for the raised first time on is It that the appeal. undisputed State failed to make Moreover, this trial argument court. this has court that law of recognized the case is an previously affirmative defense like or res See estoppel judicata. v. Brant Earney 309 Ark. ley, S.W.2d 832 defense is not for our preserved review.
Violation Rule 2.3 on 1993. January of The State next contends that the court trial overlooked uncontroverted from Officer McCord that hе testimony told Bell at the School on Stuttgart High that he did not January have to him the accompany sheriff’s Under the department. rule, bright-line according was all that was required. counters with that assertion the evidence must favor, be viewed his that the trial court found no such Rule 2.3 admonition was given.
We decline to address the merits this issue it because clear that Bell appears did not patently incriminate himself with his Indeed, statement on 1993. on that January he was not day and he told officers he suspect, was not at Cloud’s Store or Grocery Sims on the Terry the murders. night He to be found no subsequently but evi- lying, incriminating his interview on that from Bell as a result of
dence was obtained with the error associated January date. We conclude any Mar- a reasonаble doubt. See interview was harmless beyond 512 (1997). tin v. 944 S.W.2d 2.3 on 1993.
Violation Rule
next contends that there could be no vio
The State
8, 1993, because Rule 2.3 had been
lation of Rule 2.3 on January
5, 1993 and there was
cause to
with on January
complied
Both the criminal rules and our
arrest Bell on
8th.
that if a
officer has
cause to
caselaw recognize
arrest,
a Rule 2.3
is irrelevant. SeeArk. R.
failure
give
warning
*8
2.1;
State,
1, 765
566
P.
seealsoAddisonv.
298 Ark.
S.W.2d
Crim.
when there is
Probable cause exists
(1989).
reasonably trustworthy
that would lead
information within law enforcement’s knowledge
to believe that a
was com
a
of reasonable caution
felony
person
State,
v.
312 Ark.
mitted
detained. Hart
852
person
State,
State,
Addisonv.
Burks v.
293 Ark.
S.W.2d 312 (1993);
supra;
374,
The essential facts that were available 8, 1993, were thаt Sims had lied to them about the Terry time he returned the movie to Store on the Cloud’s Grocery day murders; that Sims was at the store when the grocery occurred; .22 murders that a caliber was from missing pistol Sims, that the caliber used in home of a friend of was of pistol he was not with that Bell told the officers Sims killings; after school on the of the murders but that Bell’s brother con- day told law enforcement tradicted that Bell’s brother story; officers that to the murders Sims came just prior pick up and that the men had earlier discussed a Bell two returning young soda; a and that Bell returned a short time getting videotape later with a soda pop. held that the for
This court has
test
determining
cause
on the collective information of the
rests
probable
State,
v.
271 Ark.
431 that this determinative of the issue. We conclude arrest is not lead of caution to evidence sufficient to a reasonable was person while was believe that Sims had committed the killings pres- ent. not make one an accom- Even “mere does though presence” facts are Ark. Code Ann. 5-2-403 these 1993)], plice (Repl. [see § court to constitute cause to arrest. trial enough in 1993 due erroneous statement clearly suppressing to the failure to a 2.3 and in Rule give warning finding prob- able cause did not exist.
We further take this
to state that in the
opportunity
future we
will
Ark. R.
P. 2.3
a
Crim.
interpret
require
verbаl
freedom leave as a
rule for
warning
deter
bright-fine
whether
seizure
has
mining
occurred under the
person
Fourth Amendment and whether a statement to
officers
Rather,
must be
we will view a verbal admonition of
suppressed.
freedom to leave as one factor to be considered in our
analysis
the total circumstances
2.3.
surrounding
In
compliance
short, when
Rule 2.3 in the future in
interpreting
deciding
whether a seizure of a
has
we will follow United
person
transpired,
Mendenhall,
States v.
II. Comprehension Waiver also State contends that the circumstances that Bell prove had read 8, and understood his Miranda rights and that the trial court erred in clearly otherwise. The ruling State it that was not specifically urges to make any required special or effort additional Bell’s assess to understand his ability rights and of a waiver. consequences We agree.
It was had read undisputed been his Miranda rights the statement on prior giving this date. Bell also had some with the criminal due familiarity justice fact he system 432 fact, offender. In been on as juvenile probation previously his or a he was entitled to have that as a parents
he knew
juvenile,
He was
16 and a
when
age
high
being questioned.
lawyer present
math,
courses in
sci-
who was
school
taking regular
sophomore
remеdial classes
ence,
he had also been in
and English, though
that he understood the
He further agreed
since the fourth grade.
their
but denied knowing
import.
words in his warnings
defendant’s waiver of Fifth and Sixth Amendment
A
“a full awareness of
be
with
must
knowing
intelligent
rights
and the conse
nature of the
abandoned
both the
right being
State,
it.”
v.
318 Ark.
of the decision to abandon
Clay
quences
State,
v.
309 Ark.
831
822 (1994);
883 S.W.2d
Mauppin
of a
and intel
We
the issue
(1992).
knowing
S.W.2d 104
analyze
test of
of the circumstances. See
waiver under the
totality
ligent
Balanced self-serving against of a He statement that he did not realize the waiver. consequences counsel, that he which flies in the also contends partially requested that he did not understand his Miranda face of his contention it true that defer to the trial court’s assess While is we rights.1 McFadden, ment of credibility [State no as it here the trial court (1997)], insight why provides that Bell did not understand the of what he found consequences Indeed, in favor of a the factors doing. clearly preponderate waiver. The mere statement of the intelligent knowing that he did not a waiver’s is not accused significance comprehend of his statement that he understood words and light enough that he his his to the оfficers understood rights. acknowledgment *10 ruling made whether Bell counsel and that The trial court no on precise requested issue is not before us in this appeal. in the state- We that the trial court erred hold clearly suppressing ment of Bell on this basis. court, of the trial
Because we reverse decision new trial not warranted. SeeBellv. A mandate will is supra. be issued the convictions and sentences in this case. affirming
Reversed. and dissent. JJ.,.
Newbern, Glaze, Imber, decision Justice, dissenting. Newbern, David Trial to Court statement suppress incriminating given by Albert toBell rested on two alter- police January First, nate the Trial Court that found failed to findings. Bell Mr. 8 that he apprise was under no January legal obliga- station, tion to to them the that the did accompany date, not hаve cause to arrest Mr. Bell on that and of the statement was therefore suppression under R. required Second, Crim. P. 2.3. the Trial Court concluded Mr. did not his knowingly waive constitutional intelligently rights his statement on prior making 8 and that of suppression the statement was also Fifth under the Amend- Sixth required ments to the United States Constitution. The Trial Court’s deci- sion to Mr. Bell’s 8 statement suppress was correct under our cases that have 2.3 discussed the interpreted concept cause.
The rule of criminal
at
procedure
issue
this case is Ark. R.
Crim. P. 2.3. The rule was
curiamorder of
adopted
per
Court on December
and made effective on January
1976. SeeIn the
Matter Rules
Procedure,
Criminal
Warning Appear to Persons Asked a Police Station. If a law еnforcement officer acting pursuant this rule requests station,
any come to or remain person at a police prosecuting office attorney’s or other similar he shall place, take such as steps are reasonable to make clear that there is no legal obligation to with such a comply request.
Ark. R. Crim. P. 2.3. held, two months
As we most recently have consistently a to come to the a officer who police ago, police requests person the a under Rule 2.3 to to station has duty” express per- “positive has with that he or she no to obligation son verbally legal comply 944 S.W.2d the Martin request. reason for the is the The obvious requirement impos- of a administering absent such verbalization sibility, requirement, “made clear” the rule which that the matter be to person requires to officer. requested accompany rule” is that “a statement must be Our sup- “bright-line if the fail the under Rule 2.3” to notify police “simply pressed that to come to the for he or she does “not have station person” However, if had cause to Id. the questioning.” police then of the arrest the at the time of the person request, suppression the 2.3. statement will not be even if violate Rule required police instance, In that the violation 2.3 is Id. of Rule “excused.” mentioned, that Mr. As the Trial Court found of suppression 2.3. Bell’s 8 custodial statement was under Rule required the In the Trial Court on this reversing majority appears point, the case on the initial of whether in this hedge question police that, 2.3. But even violated Rule the concludes regard- majority violated, of rule was it was the Trial less whether the error for Mr. Bell’s the Court 8 statement because suppress the time cause to arrest him at police they requested him to the come to station. police issue,
In
the
of its
the
light
ruling
majority
probable-cause
determines
it
“irrelevant”
the
is
whether
violated Rule
police
However,
2.3.
seizes the
in this case
majority
“opportunity”
that,
future,”
announce
“in the
the failure
police
give
a verbal
will not be
warning
dispositive
questions
“whether a
occurred under the Fourth
seizure
has
person
Amendment and whether a statement to
must be
officers
rule,
Under
the courts
suppressed.”
majority’s proposed
would
as
consider
failure tо
verbal
give
warning
police’s
one factor in
whether
have com-
merely
determining
2.3. The
that this
is based
majority says
plied
approach
rule laid
Statesv. Menden-
“the constitutional
down United
upon
hall,
It
its
as a “retreat”
The 2.3 Rule majority’s analysis my supported neither the law nor the facts in this case. 1. The verbal-warningrequirement to abolish the we have proposal “positive duty” imposed on the under Rule 2.3 is and sub- police improper procedural First, stantive the grounds. its own majority opinion, by analysis, makes its announcement not to this only case but unnecessary academic” with to this case. “purely v. Bob respect Sullivan Kaрp 395, 405, Co., 5, Chevrolet 234 Ark. 353 S.W.2d 11 (1962). We refuse to rule on issues that are consistently to our unnecessary Patterson, decisions. 172, 179, See v. 327 Ark. 936 Shackelford 748, S.W.2d 829, 752 Ward, 838, v. Ark. (1997); 326 Avery 934 516, S.W.2d 242, 522 (1996); State, 244, Duncan v. 263 Ark. 565 1, 2 S.W.2d (1978); Watkins, 394, 396, v. 258 Ark. Rogers 525 665, S.W.2d 667 If the wishes to abandon majority pre- cedent and alter 2.3, the fundamentally of Rule it requirements should do so in a case in which the of whether the rule question has been violated is before us. ripe squarely
Second, the a dramatic majority in the proposes law change of criminal on the basis of a procedure contention that the parties brief, did not or in manner argue, any Trial present Court or this Court. In so the doing, from our majority strays sound to resolve practice dechning that are not briefed legal questions the See, Rider v. parties. 407, 409, 232 e.g., Ark. Cunningham, 868, 337 S.W.2d 869 (1960); Turbiville, Union Motor Co. v. 223 92, n.5, 592, Ark. 97 264 S.W.2d 594 n.5 (1954); v. McA- Johnson doo, n.2, 222 Ark. 263 S.W.2d 703 n.2 (1954); Aaron, n.6, v. Wright 215 S.W.2d 729 n.6 State, (1948); v. Avery 690 App. 735 (1985) (Cracraft, bar, In C.J., the case at the concurring). State has not asked the Court to overrule our cases such as Martin v. supra, require evidence under suppression Rule 2.3 lack a verbal warning the fail to make
when police rule” as the law this “bright-line cause to arrest. The State accepts 2.3 on the violated Rule concedes that and essentially police Janu- of Mr. Bell’s is that 8. Its appeal suppression ary only argument cause to had because statement was police improper Bell. arrest Mr.
Third,
no
rationale for
offers
depart-
majority
persuasive
Rule 2.3’s
of stare decisis
abandoning
from
ing
principle
mentioned,
held
two
As
we
verbal-warning requirеment.
“a
2.3
duty’ upon
months
imposes
‘positive
ago
to refuse the
the citizen of his or her
to inform
right
to,
at,
station
to come
or remain
“although
request”
a verbal
such
words of Rule 2.3 do not
require
specifically
plain
at 517.
We cited
under Rule 2.3.
the
Court
verbal-warning requirement
imposing
State,
Ark.
As the majority proposes than the of the circumstances”—rather cases and “totality analyze of whether a verbal was the warning given single question —in 2.3, the violated Rule whether have order to determine police Amendment, Fourth “seizure” under the whether a has оccurred should a defendant’s custodial statement ultimately and whether be The asserts is based majority approach upon suppressed. Mendenhall, “the rule” announced in Statesv. constitutional United supra. the con-
The observation of the also in majority, espoused case, in the Martin a is that curring taking opinion person station without his or her freedom not to has go expressing been viewed as a “seizure” of the That is based on an person. erroneous view of our Rule 2.3 cases. the in Whatever language be, those cases it is the law that a encounter may police-citizen in which the fail to Rule 2.3 is give warning necessarily seizure under the Fourth Amendment. The illegal concurring case, case, in the and the Martin in this justices majority apparently believe Rule our 2.3 cases stand for that In Mar- proposition. case, tin criticized the idea that an concurring justices roundly Fourth Amendment seizure illegal occurs necessarily when fail to 2.3 give warning. concurring opinion cited the Mendenhall, United States v. for plurality opinion supra, that a is “seized” under the Fourth proposition person when, Amendment of the circum- considering totality factor, stances rather than one “a reasonable would any person have believed that he not free to leave.” Martin v.
Ark. at at 521 (Brown, J., concurring), quoting Mendenhall, United States 446 U.S. The con- cited other from case curring opinion Mendenhall language from other court language decisions for propositiоn *14 whether a Fourth Amendment seizure occurs does not on depend whether a is told that he or she is free to decline person to cooper- ate. The we concurring that follow these opinion urged princi- the idea that a ples reject officer’s failure to a provide verbal 2.3 Rule transforms his encounter a warning with citizen into an additional, Fourth illegal Amendment seizure. It made an different, but that the court suggestion utilize the of cir- “totality test, cumstances” not to determine whether a Fourth occurred, Amendment seizure has but also to determine whether a Rule 2.3 violation has occurred. never
First, that our cases have to understand it is important the occurs when Amendment seizure that an Fourth held illegal to the station without them a to accompany person police request the 2.3. To Rule by the verbal warning prescribed providing in our Rule 2.3 cases of the suggests extent that some language otherwise, See, Hart v. it is misleading. e.g., detectives did not the (“Since comply 852 S.W.2d at and a violation was a seizure of there 2.3], appellant [Rule Amendment unless the detectives under the Fourth his rights The definition of a Fourth arrest him.”) cause to Amendment been settled Court seizure has Supreme long It is in the Mendenhallcase. and derives from the plurality opinion 2.3 cases add to it. that our Rule anything erroneous suggest Second, 2.3 and the it is to understand Rule important different and Amendment independent obligations Fourth impose case, if Mr. Bell had that his custo- In this alleged police. be bеcause it was dial 8 should statement suppressed Amendment, then the fruit an seizure under Fourth illegal nec- a 2.3 would not the fact that he was not Rule warning given exclusion- a of any establish seizure trigger application essarily be rule. If the claim is that statement should ary suppressed seizure, Fourth Amendment because it followed illegal upon as the under “totality that claim is analyzed, majority suggests, of the circumstances” test.
If, however, the claim is that the police requested person them the without under arrest to station accompany pro- 2.3, then our the verbal warning viding prescribed 2.3 a claim has of Rule Such bright-line interpretation applies. Amendment, and the defini- to do with the Fourth thus nothing the Mendenhallcase and the tion of “seizure” from “totality circumstances” test are inapposite.
2. Probablecause recitation of facts cause majority’s constituting probable to arrest Mr. Bell is as follows: . . . Simshad lied to them about the time he returned Terry murders; on the Grocery day
movie to Cloud’s Store *15 439 occurred; when the that a at the store murders grocery Sims was Sims’s, of from the home of a friend .22 caliberpistol missing was the used in the that Bell told and that caliber of pistol killings; officershe was with Sims after school on day not but that story; the murders Bell’s brother contradicted that told law officers that just prior Bell’sbrother enforcement murders Sims came to Bell and that the two up young pick earlier men had discussed a a returning getting videotape soda; that Bell short a returned a time later with soda pop. are the If those facts that were known to State Police Investi- McCord, I had a the officer understand- gator suggest pretty good determined, testified, when he as he ing concept initially that he did not have to cause arrest Mr. Bell. probable Deputy Box, sent who was Mr. Bell did not think he pick up, obviously that, had cause to arrest in of his view Mr. probable testimony him, refused he would have go called the sheriffs office for instructions. Far more the Trial Court important, spe- found that the officers lacked cifically cause to arrest Mr. probable Bell. occasions,
As we have held on numerous cause to arrest a probable without warrant when the exists facts and circumstanceswithin the collective officers knowledge and of which they have reasonably information are trustworthy sufficientin themselvesto warrant a man of reasonablecaution in that an belief offensehas been committed to be person arrested. 147, State, 143,
Friend v. Ark. 865 S.W.2d 277 (1993). When review a we trial court’s on the of an ruling legality i.e., whether there was cause for it —we say arrest — “all are favorable to trial court’s on the presumptions ruling” issue and that “the burden of error” rests on the demonstrating Moreover, Id. appellant. although cause to arrest “[p]robable without a warrant does not neces- require quantum proof conviction,” sary sustain Addison 570 (1989), “mere does not as suspicion” qualify cause, and reason will ‘strong suspect’ “[e]ven suffice.” v. State, Roderick 288 Ark. 705 S.W.2d (1986)(citations Rose v. omittеd). See *16 440 901, will “not 902 (1988)(stating “suspicion” 742 S.W.2d State, 265 Ark. Moorev. cause”);
rise to the level of probable 211 (1979). 576 S.W.2d that the its burden of
The
has not carried
demonstrating
State
cause was in
the
of
Trial
probable
Court’s ruling
question
best,
rise
recited
the
merely give
error. The facts
by
majority,
an offense. These facts
that Mr. Bell
committed
to suspicion
that,
had reliable information con-
the
show
by January
police
Bell,
to Mr.
how-
Mr.
to the murders. With
Sims
necting
respect
ever,
the belief that Mr.
have
the facts
might
justified
time
the murders.
at the store around the
been with Mr. Sims
the
the “essential facts” mentioned by
majority
Although
that Mr. Bell
cause to believe
have
probable
may
given
Sims, “mere
at the
at the store with Mr.
presence”
present
State,
an
also Branam v.
scene of a crime is not
offense. See
204, 207,
the fact that
447 (1982)
Ark.
(stating
co-defendant’s
to the
was seen visiting
prior
appellant
apartment
State,
v.
Ark.
crime does not
rise to
cause);
give
probable
Vega
1, 2
the fact that
762 S.W.2d
(1988)(stating
appel
App.
seen near
where
lant and his
were
building
burglary
companion
rise to
cause).
had occurred
probable
merely gave
“suspicion,”
additional reason to affirm the Trial Court’s rul-
There is an
on the
issue. We have said that
question
ing
probable-cause
rests
whether the
have
cause for
arrest
upon
officers rather than
collective information
upon
who encounters the
information known to
individual officer
information sufficient to constitute reasonable cause is valid where is instructed to make the arrest arresting police agency officer which collectively constitute reasonable possesses knowledge sufficient cause [emphasis added]. We considered that rule in the Friend and held case that an made arrest an officer who lacks cause to personally *17 arrest is invalid unless the officer is instructed arresting specifically to make an arrest officers who cause to arrest. by possess probable case, In the Friend showed that the officers testimony arresting lacked cause themselves were instructed probable to stop and hold him for No appellant one who questioning. pos- sessed cause to arrest told the probable officers who detained the result, to arrest him. aAs we held the appellant arrest was made in violation of Ark. R. Crim. P. 4.1(d).
The Friend case has clear to the case at bar. application 2.3, Under оur cases Rule we interpreting a violation of say the rule is excused if the had police cause to arrest the probable defendant at the time of the request accompany police the office. The rationale behind this to the “exception” suppres- that, sion is if the requirement could have arrested the police legally event, defendant in then there is no any reason to suppress statement on account of their failure to the verbal provide warning under Rule 2.3. The of this availability “probable-cause excep- tion” thus on whether the depends could have made a police legal arrest of the defendant at the time the under Rule 2.3 “request” was made.
Here, there was Bell, no “arrest” of Mr. and thus it bemay tempting However, Friend case on that distinguish basis. it is clear that Plafcan, Box and Officer Deputy at the time they Mr. Bell to requested station, them to the accompany could not have made a arrest. The legal at the testimony suppression hearing shows that clearly like the case, officers in the they, Friend were Thus, instructed to arrest Mr. Bell. even if the “collec- police had tively” Bell, cause to arrest probable Mr. arrest made any these officers at that moment particular 8 would have January been under our illegal Therefore, the Friend holding case. we cannot that the say statement should have been admitted under the rule of general suppression pre-
“probable-cause exception” 2.3. scribed
I dissent. respectfully in Part Two of this JJ., join opinion. Imber,
Glaze
I
Justice, dissenting.
join
Imber,
Annabelle
Clinton
that the
lacked
Newbern’s dissent
finding
portion
Justice
I write
cause to arrest Bell on
8.
separately
announcement, without
dissent from the majority’s significant
dictum,that
in the form of obiter
completely
explanation
P. 2.3 to
court will no
Ark. R. Crim.
longer interpret
require
have no
officers to inform individuals
they
legal obliga-
them to the
station. This declaration is
tion to accompany
case,
to resolution
given
entirely unnecessary
present
that the officers’ failure to
Bell a Rule 2.3
majority’s holding
give
8 was irrelevant because
warning
they
cause to arrest Bell on that date. I fail to understand how this case
*18
to reconsider our adher-
us with
squarely presents
opportunity
2.3.
Martin v.
ence to the
of Rule
See
bright-line interpretation
420,
State, 328 Ark.
As
as Burks v.
293 Ark.
Donna M. MASTERSON and DG’s Shiloh Inc. v. STATE ex rel. of Arkansas Winston General Bryant, Attorney 96-1064 Court Arkansas
Supreme delivered Opinion July