*1 until some time the relative with following year. only His had a different last name. He stated that he had moved telephone friends, a number during living of times and had period, no utilities in his own he had During connected name. this period no during and could think of no one who saw him steady job daily There period. is no evidence that the State delayed gain a tactical proceedings advantage. We cannot conclude State did not satisfactorily delay. explain Affirmed.
Cloninger Mayfield, JJ., agree.
Charles VAN PATTEN v. STATE of Arkansas
CA CR 85-23
Court of of Arkansas Appeals
En Banc delivered Opinion October *2 Lee, Green, W. Hale, Morley, Randall Ward & by: Young, Morley, appellant. Clark, O. Huggins, Gen., Asst. Att’y Joel
Steve Att’y by: Gen., for appellee. Charles Van Pat- Judge. Cloninger, Appellant,
Lawson of Ark. ten, while in violation driving was intoxicated convicted $150.00 court fined him 1985). The (Supp. Stat. Ann. 75-2503 § hours costs, (24) jail, him sentenced to twenty-four plus and ordered (90) days, license for ninety his driver’s suspended On program. appeal, him to an alcoholic rehabilitation complete him without sufficient that the argues police stopped appellant all have excluded cause thus the trial court should reasonable and and reverse his We agree appellant evidence of the DWI. conviction. brought against leading charges being events to the up 18, 1983. Kevin the of December evening occurred on
appellant Tindle, that at approximately testified a Little Rock policeman, a loud disturbance regarding 11:34 he received call p.m. party to investigate at Mara While enroute Lynn Apartments. disturbance, which advised Tindle received a second call Officer had left creating him the disturbance that As Officer Tindle approached in a brown apartments Jeep. he observed a brown intersection of and Mara Lynn, Shackleford Tindle tan the same intersection. said Jeep approaching violations, any traffic committing driver of the vehicle was not on the information vehicle anyway, but he stopped testified that the driver the calls. The officer he had from received when staggered smelled alcohol Jeep, appellant, Tindle transported appellant out of the Officer stepped Jeep. test, breathalyzer and administered a the detention center results of which were .15%. that Officer Tindle did have reasonable
Appellant argues committing cause to him because he was not traffic any violations and the loud was not the call about party specific enough give Officer Tindle a him. reasonable basis for stopping argues The State appellant misdemeanor because the officer reason to had that a suspect possibly involving injury had been property committed and because of the location of the and the time of Jeep night.
The Fourth Amendment of the Constitution protects
*3
individuals
forbidding all
by
unreasonable searches and seizures.
was
Appellant
protected
the Fourth
by
Amendment as he drove
street,
down the
whether,
so the issue is
under all of the
circumstances,
right to
was
appellant’s
violated
personal security
anby
unreasonable seizure. The test is to
the
balance
nature and
quality
the intrusion on personal security (the seizure) against
the
of the
importance
governmental interests
alleged justify the
intrusion.
U.S _,
United States v. Hensley, 496
Arkansas law recognizes that where or felonies crimes a involving concerned, threat to are public safety govern the ment’s interest in solving the crime and promptly detaining suspect outweighs the right individual’s to be free of a brief stop and detention. A.R.Cr.P. Rule 3.1 reads in pertinent part:
A law enforcement officer lawfully present any place may, duties, in the performance of his and detain any person who he reasonably suspects committing, has committed, or is about to commit (1) or felony, (2) misdemeanor involving danger forcible injury persons or of or appropriation damage if such action property, is reasonably either necessary to obtain or verify the identification of the or to person determine the lawfulness of his conduct.
In
71,
Hill
628 S.W.2d
cert.
denied,
described as late thereafter, an Soon lettering. dark blue or black license plate awith white that matching description officer observed a vehicle Arkansas Supreme with dark letters. The Oklahoma license plate matched the car that was reasonable because Court held vehicle it was not another description; likely time; and the was in the area at that broadcasted description neighboring county. committed in a recently crimes had been just 3.1, court, justification “the discussing Rule stated that whether, under the totality investigative upon stop depends circumstances, have specific, particularized, vehicle be may or indicating articulable reasons Id. at 80. involved in criminal activity.” bar, had we Officer Tindle In case at do think suspect felony or articulable reasons to specific, particular or injury involving danger or misdemeanor The radio dispatch had been committed. property general informa gave extremely received was and it anonymous The officer did not tion a “loud a “brown party” Jeep.” about so before complaint stopping appellant, confirm the investigate involving he had no reason to that misdemeanor suspect committed damage had been personal property occupant. *4 circumstances,
Thus, we of think totality under under Officer Tindle’s of was unreasonable appellant 3.1; Fourth Amend- appellant’s A.R.Cr.P. Rule that it violated ment and of the DWI should have been rights; that the evidence excluded.
Reversed and dismissed.
Cooper JJ., dissent. Mayfield, and dissenting. R. I dissent Cooper, Judge, respectfully James because, it fails to follow from the in majority opinion my opinion, 539, Arkansas law as set out in Baxter v. 626 Baxter, Court (1982). In the Arkansas Supreme S.W.2d 9, In issued 1981. affirmed our unpublished opinion September Baxter, over an armed broadcast general report robbery of to located city radios. An officer went check out police park, He mile from the scene the robbery. one-fourth approximately observed a vehicle in the He the vehicle and later park. stopped discovered evidence which led to the conviction. In appellant’s Baxter, the officer testified that had no reason to information, subject except to seek and that he asked for Baxter’s driver’s license in case other officers wished to contact him later as a witness.
The Supreme Court noted that cases “regarding police to make authority investigatory stops upon that a suspicion vehicle or a in involved criminal person activity are inapplicable to the stop at issue here.” 274 Ark. at The Court then said: [citations omitted]. extent,
Involved here is the question of the
of permissible
interruption
citizen must
to
bear
accommodate a law
enforcement officer who is
investigating
crime. The
practical necessities of law enforcement and the obvious
fact that
any person
society
other
may approach any
purposes
information
requesting
make it
clear the
have the
to
authority
civilians.
approach
There is in the nothing Constitution which prevents from addressing any individual. See questions Ohio, Terry supra. However of a approach citizen pursuant policeman’s investigative law enforcement function must be reasonable under the existent circum- stances and requires weighing government’s interest for the intrusion against the individuals right privacy personal freedom. To be considered are the manner interference, intensity gravity involved, crime and the circumstances attending the en- counter. [citation omitted.]
Id. P., Court then cited Rule 2.2 the Ark. R. Crim. Ark. Stat. Ann. Tit. (Repl. 1977), which App. provides basically that a police officer may anyone to furnish request information crime, cooperate investigation of a even may require *5 the person go station.
Turning bar, to the case at the received of report what was variously described as a “disturbance” or a “loud party disturbance”. A vehicle similar to that driven the by appellant additional the scene after an or two of
was observed within block for the responsible the had been received that report that, the time of It is true at the scene. just disturbance had left disturbance; nature the did not know the the officer stop, the family a loud party, quarrel, was simply did not know whether it cites only majority opinion crime. The fight, other any type Procedure, assuming that Rule 3.1 of the Rules of Criminal for being person responsible was appellant suspected “disturbance”, that, no informa- since there was then holds crimes against property the officer’s possession tion in occurred, the stop. Rule 3.1 would allow had fact that confusion is the majority’s Part of the reason for the Baxter, of the Court, the seriousness in mentioned the Supreme 3.1, because obviously Rule rely Yet the Court did not on crime. to do had anything indication that Baxter absolutely there was no 2.2, and under Rule only crime. The case was affirmable in there At least this case I think we reach the same result. should Patten, or whoever that Van was articulable reason believe an be, have truly turned out to did operator Jeep Baxter, In activity had occurred. knowledge of whatever criminal search, arrest, of a person Court Supreme upheld stop, who, best, at was a mere passer-by.
I would affirm. dissenting. I dissent from the Mayfield, Judge, Melvin decision and in order to this case majority’s put proper I made for the State argument first the entire quote perspective, Attorney General. by conviction of while driving his
Appellant appeals finding the trial court erred in arguing intoxicated a reason- was investigatory stop appellant supported was lack of argue able does not there suspicion. Appellant while intoxicated driving cause for his arrest probable the stop initial submits following stop. Appellee Amendment was valid under both the Fourth appellant Procedure and Rule 3.1 of the Arkansas Rules Criminal and articulable specific, because it particular had in criminal indicating reasons been involved appellant Ohio, (1968); A.R.Cr.P. Rule activity. Terry v. U.S. 3.1; 284 (1982). Hill v. 628 S.W.2d
89 of this issue under the Fourth Amend- analysis ment and Rule 3.1 is most Rule 3.1 is a overlapping part. of under the codification those interests Fourth protected Amendment interpreted by as Amendment Court in Rule 3.1 deals with the Supreme Terry. only of the initial which was but one validity stop aspect in Terry. frisk issue Since Rule 3.1 tracks the Fourth in part Amendment relevant to the protections case, facts this the issue can should be resolved here on the basis of Rule 3.1. Resolution of the issue thus on is depends whether conduct a misde- initially disorderly meanor of involving danger to injury persons property so, and if on secondly whether the had a policeman when he suspicion stopped appellant. conduct, defined at Ark. Disorderly Stat. Ann. 41-§ 1977), 2908 (Repl. can be clearly involving misdemeanor the danger injury of 41- property. § 2908(1) (a) defines conduct as disorderly caus- purposely inconvenience, ing public or alarm annoyance by fighting violent, or by threatening behavior. This section disor- conduct derly is concerned with clearly preventing injury to persons. 41-2908(l)(c) danger involves injury § persons, as well (1) 41 (h) -2908 involves danger of § Furthermore, injury property. show, as precedents those persons convicted of conduct disorderly have often injured See, others. State, 263, e.g. Bousquet 261 Ark. S.W.2d 125 (1977); Farr v. App.
S.W.2d 884 (1982).
Because of this danger to either injury persons or property, conduct disorderly falls within that group misdemeanors identified in Rule 3.1.
Since conduct disorderly is covered Rule 3.1 the next issue whether the here policeman had specific, particular and articulable reasons his supporting investi- gatory 2.1, appellant. Rule defining reasonable 2.1, suspicion, to Rule commentary and case law give a clear picture of what is before required an investigatory stop will be deemed valid. In essence there must be an objective (i.e., manifestation particular and ar- specific, been, is, isor has reasons) that the person stopped
ticulable case Such is the activity. in criminal engaged about be *7 was sent to investi- while on patrol, The here. policeman, western a conduct at party disorderly gate suspected a he received way, While on his Rock 11:34 p.m. Little at creating that the suspect broadcast second radio traveling east. in brown and disturbance had left jeep east of intersection met a brown at an jeep The policeman The stopped disturbance. policeman the scene of the in close The intersection was at that intersection. jeep scene of the disturbance. to the proximity relied by The facts upon specific particular him informing 1) were: the radio broadcast officer had left in a brown the disturbance suspect causing relative brown its 2) jeep the nearness of a jeep, 3) the time scene of the disturbance location to the been alone not have may one of these facts night. Any combined, to when enough suspicion; support however, a basis in fact for stopping there is clearly reason- by was valid because supported The appellant. omitted.) to (Citations transcript able suspicion. out that reasonable point suspicion To the above I would as follows: A.R.Cr.P. Rule 2.1 defined on suspicion means a “Reasonable suspicion” do rise give of themselves not or circumstances which facts arrest, cause lawful justify to the probable requisite is, a rise to more than bare give suspicion; but which imaginary to an opposed that is reasonable as suspicion purely conjectural suspicion. states “The purpose to Rule 2.1 Commentary part: affording not in circumstances
the rule is to allow brief detention to a ‘reasonable giving arrest but rise reasonable cause to Williams, Adams criminal conduct is afoot.” In suspicion’ of the United Court (1972), Supreme 145-46 U.S. States said: who policeman
The Fourth Amendment does require for proba- level information necessary lacks the precise and allow shrug cause arrest to his shoulders ble simply the contrary, crime occur criminal On escape. it the essence of Terry recognizes good be may work to ... A adopt an intermediate brief response. individual, of a in order to determine his suspicious identity or to obtaining maintain the status while quo momentarily information, light more be most reasonable in may facts known to the officer at that time. argued
I would affirm on the basis I by the General. Attorney also think it would be to affirm for the reasons set out in the proper dissenting opinion of Judge Cooper.
METROPOLITAN PROPERTY AND LIABILITY INSURANCE V. Loyd COMPANY STANCEL and L.
Doris
STANCEL
CA 84-440
Court of Appeals Arkansas
Division II Opinion delivered October