Stewart v. State

Kathy STEWART v. STATE of Arkansas

CA CR 97-236                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered October 15, 1997


1.   Appeal & error -- bench trial -- agreement reached to take up
     issue during course of trial -- issue preserved for review. --
     At the beginning of a bench trial, the public defender stated
     that a motion to suppress the evidence seized had been filed
     and asked if that issue could be taken up during the course of
     the bench-trial testimony, and both the trial judge and the
     prosecutor acquiesced; the public defender renewed the motion
     to suppress the evidence both after the State rested and at
     the close of appellant's case, and the trial judge denied it;
     with an agreement to take up the issue during the course of
     trial and with the trial judge as the determiner of all facts
     and rulings, appellant preserved the issue for appeal.  

2.   Motions -- denial of motion to suppress -- review of. -- In
     reviewing a trial court's denial of a motion to suppress, the
     appellate court makes an independent determination based upon
     the totality of the circumstances; the appellate court
     reverses only if the ruling is clearly against the
     preponderance of the evidence.

3.   Criminal procedure -- State could not stop and detain
     appellant based upon Ark. R. Crim. P. 3.1 -- officer had only
     "feelings" that appellant might be engaged in drug
     trafficking. -- Appellant's argument that the State could not
     stop and detain her based upon Rule 3.1 of the Arkansas Rules
     of Criminal Procedure was correct; based upon the testimony
     elicited from the police officer, he had nothing more than
     "feelings" that appellant "might" be engaged in drug
     trafficking; the reasonable suspicion required under Rule 3.1
     requires having a suspicion based on facts or circumstances
     that of themselves do not give rise to the probable cause
     requisite to justify a lawful arrest but that give rise to
     more than bare suspicion.

4.   Appeal & error -- trial court may be affirmed if right result
     reached for wrong reason. --  The appellate court may affirm
     a trial court if it reached the right result for the wrong
     reason.

5.   Criminal procedure -- initial meeting of officer and appellant
     -- legitimate under Ark. R. Crim. P. 2.2. -- Arkansas Rule of
     Criminal Procedure 2.2 has been interpreted so that an officer
     may approach a citizen in much the same way that a citizen may
     approach another citizen and request aid or information; here,
     when the patrol car drove up to appellant standing on a street
     corner, this was simply a consensual public encounter and was
     not yet a seizure; considering the manner of the interference,
     the gravity of the crimes in the area, and the circumstances
     of the encounter, the initial meeting between the officer and
     appellant was legitimate under Rule 2.2.

6.   Criminal procedure -- search should not be more extensive than
     reasonably necessary -- purpose of frisk. -- Pursuant to Ark.
     R. Crim. P. 3.4 if a law enforcement officer who has detained
     a person under Rule 3.1 reasonably suspects that the person is
     armed and presently 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 that may be used against the officer or
     others; in no event shall this search be more extensive than
     is reasonably necessary to ensure the safety of the officer or
     others; the purpose of a frisk pursuant to Terry v. Ohio, 392 U.S. 1 (1968), is to allow an officer to pursue an
     investigation without fear of violence. 


7.   Criminal procedure -- officer's safety as important during
     encounter pursuant to Ark. R. Crim. P. 2.2 as it is in context
     of Ark. R. Crim. P. 3.1 -- protective frisk necessary for
     performance of officer's public duty. -- Where an encounter
     does not rise to the level of suspicion of criminal activity
     as contemplated by Ark. R. Crim. P. 3.1 and 3.4, police
     officers cannot be asked to risk what they perceive could be
     a lethal encounter in performing their public duties unless
     they are also allowed to make a protective frisk; an officer's
     safety is as important during an encounter pursuant to Rule
     2.2 as it is in the context of a Rule 3.1 stop with a
     reasonable suspicion of crime; here, appellant's furtive
     movements and unwillingness to keep her hand out of her pocket
     warranted a protective pat-down search.
     
8.   Criminal procedure -- subsequent search exceeded permissible
     limits -- encounter did not rise to level of suspicion of
     criminal activity contemplated by Ark. R. Crim. P. 3.4. --
     Although appellant's furtive movements and unwillingness
     to keep her hand out of her pocket warranted a protective pat-
     down search, the officer's search inside a matchbox found in
     appellant's pocket went beyond mere protection; there was
     nothing in the record to suggest that the matchbox taken from
     appellant's pocket contained a weapon or posed a risk to the
     officer's safety; without some evidence other than suspicion
     or a hunch that the matchbox contained a controlled substance,
     it was patently inappropriate for the officer, under the guise
     of maintaining his or others' safety, to take the matchbox and
     open it; a protective search must be no more invasive than is
     necessary to ensure the officer's safety; looking inside the
     matchbox ensured no more safety to the officer.

9.   Criminal procedure -- search and seizure illegal -- motion to
     suppress should have been granted. -- Although it was apparent
     that the police officer suspected that appellant was in
     possession of drugs, searching appellant's personal belongings
     when the officer's safety was not in jeopardy exceeded
     constitutional bounds; because this was an unreasonable search
     and seizure, the motion to suppress the fruit of the search
     should have been granted.


     Appeal from Pulaski Circuit Court; David Bogard, Judge;
reversed and remanded.
     William R. Simpson, Jr., Public Defender, by:  Deborah R.
Sallings, Deputy Public defender, for appellant.
     Winston Bryant, Att'y Gen., by:  C. Joseph Cordi, Jr., Asst.
Att'y Gen., for appellee.

     John B. Robbins, Chief Judge.
     Appellant Kathy Stewart appeals her conviction after a bench
trial for possession of a controlled substance, cocaine, for which
she was sentenced to three yearsþ probation, ordered to pay a
$250 fine plus court costs, and given thirty days in jail.  Her
sole point on appeal is that the trial court erred in declining to
suppress the evidence seized from her person by the police officer
who stopped her in the early morning of December 4, 1995.  We agree
with appellant and reverse her conviction.
     The events leading up to appellantþs arrest are as follows. 
A Little Rock police officer was patrolling what he characterized
as a þhigh drug trafficþ area when he observed appellant standing
on the corner of 27th Street and Broadway at approximately 1:45
a.m.  This street corner was in front of her residence at 2715
Broadway.  She was wearing a jacket, and when the officer
approached her he asked her to remove her hands from her pockets. 
She removed them, but according to the officerþs testimony, she
continued to try to put her hand back into her right jacket pocket. 
At that point the officer determined he would do a þpat-down safety
search.þ  Upon reaching into that pocket, he found thirty-five one
dollar bills, a one-hundred dollar bill, and a small matchbox.  He
opened the matchbox and found two rocks that appeared to be crack
cocaine.
     When the public defender asked the officer at the bench trial
what criminal activity aroused his suspicion about appellant when
he approached her, the following exchange took place:
     þI felt that she might have been engaged in drug trafficking.þ

     þHad you seen her do that?þ

     þGiven the area, Iþve made numerous arrests in that area. 
      Given the time of day and where she was standing--þ

     þBut did you see Ms. Stewart engage in any of those     
      activities other than standing on the corner?þ

     þI felt that by being at that area, she was in engaged in 
      that activity.þ

     þDid you see her talk to anyone, deliver any substance to 
      anyone or do anything of that nature?þ

     þNo, I did not.þ
     Appellant took the stand in her own defense.  She testified
that she was standing out in front of her residence.  The police
drove up to her, and she talked to the two officers.  When they
asked what was in her pockets, she told them that she had money
from her paycheck, matches, and cigarettes.  She approached the
police car as they requested, and the police conducted a search of
her outer clothing.  She explained that the drugs in the matchbox
belonged to her cousin who had borrowed money and her jacket
earlier that evening.
     The State first argues that we should not reach the merits
of appellantþs appeal because she failed to preserve the issue for
review.  Specifically, it asserts that although appellant filed a
motion to suppress the cocaine based upon an illegal search and
seizure, brought it to the attention of the trial judge at the
commencement of the bench trial, and renewed her motion at the
close of the trial, she failed to object to the admission of the
cocaine upon the same search and seizure argument when it was
introduced through the testimony of the chain-of-custody officer.
     The State cites Beck v. State, 12 Ark. App. 341, 676 S.W.2d 740 (1984), for this proposition, but in that case the appellant
argued for the first time on appeal that the trial court should
have excluded evidence based upon an illegal arrest.  Such is not
the case before us now; it cannot seriously be argued that this
issue is being raised for the first time on appeal.  The State also
cites Rideout v. State, 22 Ark. App. 209, 737 S.W.2d 667 (1987),
but that case involved an appellant who neither moved to suppress
evidence nor objected to the evidence when it was admitted.  Again,
this is anything but true in the case before us today.  The State
presents no compelling authority that would require us to decline
review of appellant's argument.
     We recognize that there are cases stating that, with regard
to motions in limine, one must contemporaneously object to the
evidence if the court initially declines to rule on the motion. 
Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996); Massengale v.
State, 319 Ark. 743, 894 S.W.2d 594 (1995).  However, those cases
state that rule in the context of jury trials.
     Indeed, we believe that appellant was not required in this
case to object again as the State presented its version of the
facts to the judge.  At the beginning of the bench trial, the
public defender stated that a motion to suppress the evidence
seized had been filed and asked if that issue could be taken up
during the course of the bench-trial testimony.  The trial judge
responded, "Sure.  Sure.  Let's do that."  The prosecutor said
nothing, acquiescing in this decision.  After the prosecutor ended
her examination regarding the chain-of-custody of the cocaine and
rested the State's case, the public defender renewed the motion to
suppress the evidence.  She renewed the motion at the close of
appellant's case, and the trial judge denied it "for the same
reasons I stated earlier."  Those reasons are not found in the
record, but it is clear the motion was denied, and the trial judge
found appellant guilty.
     On the facts of this case, we cannot say that appellant failed
to preserve this issue for our review.  We emphasize that this was
a bench trial, and it was the trial judge who would both find the
facts and rule on evidentiary questions.  With an agreement to take
up the issue during the course of trial and with the trial judge as
the determiner of all facts and rulings, we cannot say appellant
failed to preserve this issue for appeal.  For this reason we reach
the merits of appellant's argument.
     In reviewing a trial courtþs denial of a motion to suppress,
we make an independent determination based upon the totality of the
circumstances.  We reverse only if the ruling is clearly against
the preponderance of the evidence.  Norman v. State, 326 Ark. 210,
931 S.W.2d 96 (1996).
     Appellant argues that the State could not stop and detain her
based upon Rule 3.1 of the Arkansas Rules of Criminal Procedure. 
We agree.  Rule 3.1 was the primary basis upon which the State
argued that the initial stop was valid.  Rule 3.1 states in
pertinent part:
          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.
þReasonably suspectsþ means having a suspicion based on facts or
circumstances that of themselves do not give rise to the probable
cause requisite to justify a lawful arrest, but which give rise to
more than bare suspicion; a suspicion that is reasonable as opposed
to imaginary or conjectural suspicion.  Ark. R. Crim. P. 2.1. 
Based upon the testimony elicited from the police officer, he had
nothing more than þfeelingsþ that appellant þmightþ be engaged in
drug trafficking.
     The State alternatively asserts that the police officer
correctly stopped to question appellant under the authority found
in Ark. R. Crim. P. 2.2, which provides that an officer may ask any
person to furnish information or cooperate in the investigation of
or prevention of crime.  Although this was never urged as a basis
to sustain the stop at the trial level, we recognize that we may
affirm a trial court if it reached the right result for the wrong
reason.  Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993).  The
Arkansas Supreme Court has interpreted Rule 2.2 such that an
officer may approach a citizen in much the same way that a citizen
may approach another citizen and request aid or information.  State
v. McFadden, 327 Ark. 16, 938 S.W.2d 799 (1997).  When the patrol
car drove up to appellant standing on a street corner, this was
simply a consensual public encounter and was not yet a seizure. 
See U.S. v. Hernandez, 854 F.2d 295 (8th Cir. 1988).  The initial
encounter of appellant and the police on a public street corner
fits most appropriately within the parameters of Ark. R. Crim. P.
2.2, considering the manner of the interference, the gravity of
the crimes in the area, and the circumstances of the encounter. 
Therefore, the initial meeting between the officer and appellant
was legitimate under Rule 2.2.  See McFadden, 327 Ark. at 21.
     The behavior of the police officer was proper until the
subsequent search exceeded permissible limits.  Pursuant to Ark.
R. Crim. P. 3.4:
     If a law enforcement officer who has detained a person
     under Rule 3.1 reasonably suspects that the person is
     armed and presently 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. In no event shall this search be
     more extensive than is reasonably necessary to ensure the
     safety of the officer or others.

(Emphasis added.)  The purpose of a frisk pursuant to Terry v.
Ohio, 392 U.S. 1 (1968), is to allow an officer to pursue an
investigation without fear of violence.  Hill v. State, 275 Ark.
71, 628 S.W.2d 285 (1982).
     While this encounter did not rise to the level of suspicion
of criminal activity as contemplated by Rules 3.1 and 3.4, police
officers cannot be asked to risk what they perceive could be a
lethal encounter in performing their public duties unless they are
also allowed to make a protective frisk.  Certainly an officer's
safety is as important during an encounter pursuant to Rule 2.2 as
it is in the context of a Rule 3.1 stop with a reasonable suspicion
of crime.  Here, appellant's furtive movements and unwillingness
to keep her hand out of her pocket warranted a protective pat-down
search.
     However, after this protective search, the officer went beyond
mere protection.  We see nothing in the record to suggest that
the matchbox taken from appellantþs pocket contained a weapon or
posed a risk to the officerþs safety.  Even if this is a high-crime
area, without some evidence other than suspicion or a hunch that
a matchbox contains a controlled substance, it is patently
inappropriate for an officer, under the guise of maintaining his
or othersþ safety, to take a matchbox and open it.  This was not a
search incident to arrest.  A protective search must be no more
invasive than is necessary to ensure the officerþs safety; looking
inside the matchbox ensured no more safety to the officer.
     As the United States Supreme Court in Terry stated:
          This inestimable right of personal security belongs
     as much to the citizen on the streets of our cities as
     to the homeowner closeted in his study to dispose of
     his secret affairs.  For, as this Court has always
     recognized, þNo right is held more sacred, or is more
     carefully guarded, by the common law, than the right of
     every individual to the possession and control of his own
     person, free from all restraint or interference of
     others, unless by clear and unquestionable authority of
     law.þ
Terry, 392 U.S.  at 9, citing Union Pacific Railroad Co. v.
Botsford, 141 U.S. 250 (1891).  The Court went on to state:
          Under our decision, courts still retain their
     traditional responsibility to guard against police
     conduct which is overbearing or harassing, or which
     trenches upon personal security without the objective
     evidentiary justification which the Constitution
     requires.  When such conduct is identified, it must
     be condemned by the judiciary and its fruits must be
     excluded from evidence in criminal trials.
Terry, 392 U.S.  at 15.
     People often have no choice but to live in what might be
characterized as high-crime or high-drug-traffic areas.  However,
Fourth Amendment rights follow all citizens, no matter where
they live.  It is apparent that the police officer suspected that
appellant was in possession of drugs, but searching appellant's
personal belongings when the officer's safety was not in jeopardy
exceeded constitutional bounds.  The State asks us to follow
Jackson v. State, 34 Ark. App. 4, 804 S.W.2d 735 (1991), wherein
crack cocaine was discovered inside appellant's matchbox that was
found during a pat-down search.  An equally divided court affirmed
the search of the matchbox, the divisive point being whether the
opening of the matchbox was constitutional.  A case affirmed by an
equally divided court is afforded no precedential weight.  France
v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987).  On the issue
before us, we are more aligned with the reasoning espoused by
the dissenting judges in the Jackson case.  Because this was an
unreasonable search and seizure, the motion to suppress the fruit
of the search should have been granted.
     Reversed and remanded.
     Crabtree and Meads, JJ., agree.