| Appellant Rodney Webb was convicted by a Drew County jury of possession of cocaine in violation of Ark.Code Ann. § 5-64-401 (Repl.2005), and sentenced to twenty-two years’ imprisonment by the circuit court after the jury could not reach a unanimous verdict on sentence. We assumed jurisdiction of this case pursuant to Ark. Sup.Ct. R. l-2(b)(5)(2011). On appeal, he argues only that the circuit court erred in denying his motion to suppress. We affirm.
Appellant was charged by criminal information on July 1, 2009, with one count of second-degree battery and one count of possession of cocaine with intent to deliver.
A hearing on the motion was held on January 25, 2010. Prior to the presentation of evidence, the court was informed that appellant was on parole at the time of the search and that he had signed a parole agreement, although the specific agreement signed by appellant was not introduced at the hearing. The State presented two witnesses, Deputy Jeremy Chapman and Deputy Rex Davis, both employed by the Drew County Sheriffs
Following the State’s presentation of evidence, the circuit court announced that the focus of the suppression issue was whether appellant had signed a parole agreement waiving his right to consent to searches by law enforcement. The court took the suppression issue under advisement until the parties could file briefs and obtain the actual parole agreement signed by appellant.
On February 4, 2010, the State filed its brief, arguing that appellant did not have standing to challenge the search (1) because as a parolee, he was still in the custody of the Arkansas Department of Correction and (2) because he signed a parole agreement agreeing to warrantless searches at the direction of or by his parole officer. Alternatively, the State contended that the search was valid incident to an investigatory stop pursuant to Rule 3.1 of the Arkansas Rules of Criminal Procedure. Attached as an exhibit to the brief was a “Permission for Warrant Less Search” signed by appellant on February 21, 2008, which stated that he gave his parole officer or any law enforcement officer the consent to search his person, vehicle, residence, or property under his control without a warrant if his parole officer had reasonable grounds to believe that appellant had violated the terms of his parole or may have | committed any federal or state crime. Also attached and signed by appellant in February 2008 were his conditions of release, which stated that he “must submit [his] person, place of residence, and motor vehicles to search and seizure at any time, day or night, with or without a search warrant, whenever requested to do so by any Department of Community Punishment Officer.”
On February 5, 2010, appellant filed his brief on the suppression issue, maintaining that the advance consent to search that appellant signed as a condition of his parole only allowed searches by his parole officer or a Department of Community Correction officer at the behest of his parole officer. Appellant argued that it did not allow warrantless searches by any and all law enforcement officers. Moreover, appellant averred that the traffic stop and search of appellant “was a classic pretextual stop and search” and that the items seized from appellant should have been suppressed. Also on February 5, 2010, the
On February 12, 2010, appellant filed a motion for rehearing, arguing that at the hearing on January 25, the State had been allowed to present witnesses on its behalf with regard to the suppression issue but that appellant had not been afforded the same opportunity because the hearing had been concluded so the parties could research and brief the issue regarding appellant’s parole status. Appellant contended that despite the hearing’s abrupt end, the circuit court had entered an order denying the suppression motion. Appellant maintained that a hearing should be conducted so that he could present witnesses on his behalf. Also on |.-,February 12, appellant filed a motion for findings of fact and conclusions of law, asking the circuit court to explain its reasoning for denying suppression so as to create an appropriate record for appellate purposes.
On the day appellant’s jury trial was scheduled to begin, the circuit court agreed to continue the suppression hearing to allow appellant to testify. Appellant testified that after Deputy Chapman approached the vehicle, he asked appellant to step out of the car. Chapman asked if appellant had any weapons on him and patted him down. Appellant stated that Chapman and another deputy, Chris Owen, discovered that appellant’s passenger had an active warrant and placed him under arrest. Thereafter, Chapman searched appellant’s vehicle. Appellant stated that he did not give consent to search the vehicle. Appellant testified that after finding nothing in the vehicle, Chapman again searched appellant’s person, focusing on his groin area. Appellant stated that he moved when Chapman touched his groin area, and as a result, the officers put him on the ground, unzipped his pants, and pulled them down. Appellant testified that he never gave consent to search his person.
The circuit court then ruled from the bench that the search of appellant’s person was limited in nature; that as a parolee, appellant had no expectation of privacy when stopped in an investigatory matter; and that this was a search incident to an investigatory stop. Although the circuit court believed Deputy Chapman did not need appellant’s consent to pat him down, the court found that the officer had received consent.
Thereafter, appellant’s jury trial was conducted and he was found guilty of possession of cocaine. However, the jury deadlocked on sentence. The court determined that it would | (¡sentence appellant and excused the jury. Thereafter, during an in-chambers discussion, appellant’s counsel asked the court for more specific findings on the motion to suppress. The court agreed in order to complete the record and found that Deputy Chapman’s testimony that he initiated the stop after appellant had crossed the center line was credible; that after the stop, the officer had a right to conduct a pat-down search; that the stop was a valid investigatory stop; that appellant was on parole and had a “stepped-down status as far as the right to privacy”; that consent to search was given; and that the frisk was not overly intrusive.
At a separate sentencing hearing held on April 5, 2010, the circuit court sentenced appellant as a habitual offender to twenty-two years in prison to run concurrent to the sentence appellant was serving after revocation. On the same day, a judgment and commitment order was entered. An amended judgment and commitment order was entered on April 12, 2010. Appellant
Appellant’s sole point for reversal is that the circuit court committed reversible error by denying his motion to suppress on the basis that appellant was provided a lesser expectation of privacy because of his status as a parolee. Appellant contends that Deputy Chapman had no authority to search appellant’s person based on the parolee consent-to-search agreement because based on the terms and conditions of that agreement, any search was limited to parole officers or Department of Community Punishment officers.
In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or Aprobable cause, giving due weight to inferences drawn by the trial court. Davis v. State,
We need not address the issue posited by appellant on appeal relating to his status as a parolee because we affirm the circuit court’s denial of suppression on the basis that the search of appellant’s person was consensual following a valid traffic stop. The circuit court articulated several grounds for denying the suppression motion. Notably, the circuit court focused more on appellant’s status as a parolee than on other grounds for denial. However, it did find that Deputy Chapman made a valid traffic stop and had consent to search. Because we are satisfied that those findings are not clearly erroneous, we affirm.
First, Deputy Chapman’s initial decision to pull appellant over was entirely legal. In order for a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Sims v. State,
Next, we turn to the search of appellant’s person. Arkansas Rule of Criminal Procedure 11.1 provides that “[a]n officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search or seizure.” Additionally, a consensual search shall not exceed, in duration or scope, the limits of the consent given. Ark. R.Crim. P. 11.3. The State has the burden of proving by clear and convincing evidence that consent to search was freely and voluntarily given and that there was no actual or implied duress or coercion. Ark. R.Crim. P. 11.1(b). The United States Supreme
Deputy Chapman’s version of the events on the day in question are different than appellant’s version. Deputy Chapman testified that he asked for permission to search appellant’s person and that appellant consented to the search. During the search, Deputy 19Chapman felt a hard object in appellant’s groin area, at which time appellant began to struggle with the officers, and they detained him and discovered the contraband. In contrast, appellant claimed that he never consented to the search of his person and that Deputy Chapman searched him twice — a pat-down search before searching the vehicle and a more focused pat-down following the vehicle search.
After hearing this conflicting testimony, the circuit court determined that consent was given and that the frisk was not overly intrusive. It is apparent that the circuit court found the testimony of Deputy Chapman to be more credible than the testimony of appellant. As we stated in State v. Nichols,
Affirmed.
Notes
. The second-degree battery charge was later nolle pressed at trial.