Pete Augustus Lewis v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

PETE AUGUSTUS LEWIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-849

October 26, 2005

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CR 2003-236]

HON. GARY RAY COTTRELL

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Pete Lewis was convicted in a Crawford County jury trial of possession of marijuana with intent to deliver, and he was sentenced to 360 months in the Arkansas Department of Correction. He argues that the trial court erred in denying his motion to suppress the contraband that was seized in a consensual search. We affirm.

At Lewis's suppression hearing, Arkansas Highway Police Officer Ruddy Gene Short, Jr., testified that on May 18, 2003, Lewis pulled his tractor-trailer into a weigh station on Interstate 40 in Crawford County. While conducting a random inspection, they chose Lewis's vehicle. Lewis was told to come into the station, and Short concluded that Lewis's demeanor, lack of eye contact, and overall body actions indicated that Lewis was nervous. As per the usual procedure, Short asked for Lewis's driver's license, log book, truck and tractor registration, and shipping papers. Based on Lewis's nervousness, inconsistencies in his log book, and his failure to present a driver's license when asked, Short asked Lewis for his consent to search the truck. Lewis agreed, and he signed a consent-to-search form in

Short's presence. Short stated that he went over the form with Lewis, and Lewis appeared to understand "his rights regarding [the] form."

When Short opened the door of Lewis's truck, he noticed that the curtain to the sleeper compartment was "pulled all the way to." When he pulled the curtain back, he noticed several large bundles wrapped in plastic. Short suspected that the bundles contained a controlled substance, and he placed Lewis in custody. Short completed the search, recovering more than 800 pounds of marijuana.

On cross examination, Short admitted that he had "absolute discretion" in determining which trucks would be randomly inspected and that there was no "system" for selecting the subject vehicles. He also admitted that, although Lewis did not have his license with him, a computer check revealed that Lewis did have a valid license. Short, however, stated that he found Lewis's itinerary suspicious in that Lewis's vehicle was registered in Florida, that he spent six days out of service in Albuquerque, and that he was currently running empty, which was not "cost effective."

Sergeant Case Hanson testified that he too was on duty at the weigh station on the night of Lewis's arrest. He confirmed that there was no specific protocol for the "random" selection of trucks to inspect. Hanson did note, however, that they tried to do five inspections per night and that the inspections take between twenty minutes and an hour.

Lewis testified on his own behalf. He confirmed that he gave consent to search his truck, but he thought that the police would only look inside the body of the trailer. Lewis claimed that he signed the consent form only after he had been handcuffed. Lois Martin-Lewis, Lewis's sister-in-law, also testified. She stated that Lewis was from Jamaica, and he had difficulty in reading and interpreting the English language. Martin-Lewis further notedthat she observed Lewis's difficulty reading the police report, and she claimed that her cousin regularly assisted Lewis with his paperwork.

Lewis's trial counsel argued that the search was constitutionally invalid because the inspection was not "random," that the statutory and regulatory scheme under with the police were proceeding did not authorize them to go beyond a safety check, and that the police did not articulate a reason for going beyond that. He also asserted that Lewis did not knowingly and intelligently consent to the search.

The trial court denied Lewis's suppression motion. It found that the highway police had the legal authority to pull Lewis's vehicle over, that there was no problem with the randomness aspect of the inspections, that the officer detected suspicious behavior on Lewis's part, and that the police requested and received permission to search the truck. The trial court also made a finding that Lewis understood the oral request for consent and that the consent was voluntarily given.

On appeal, Lewis argues that the trial court erred in denying his suppression motion because the police had no probable cause to believe that there was a safety violation and Lewis's difficulty with the English language made his consent invalid. Regarding the first part of his argument, Lewis asserts that his case is analogous to United States v. Belcher, 288 F.3d 1068 (8th Cir. 2002), and he urges us to rely on it to find that the officers did not have reasonable suspicion to inquire about Lewis's bills of lading, and therefore the search was conducted without probable cause. Consequently, without consent, the search would be illegal. Regarding the second part of his argument, Lewis asserts that his alleged consent was invalid under each of two possible scenarios. First, citing Griffen v. State, 347 Ark. 788, 67 S.W.3d 582 (2002), he contends that if Officer Short searched his vehicle first before getting his consent, the search would be illegal. Second, he asserts that even if the officergot his signature on the consent form prior to the search, the search would be invalid because of his difficulties reading the English language. We disagree.

When reviewing the denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances. See Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). We look to findings of facts to assess whether clear error exists, and we determine whether those facts give rise to reasonable suspicion or probable cause after giving due weight to inferences drawn by the trial court. Id.

We note first that Lewis's probable-cause argument was not ruled on by the trial court, and therefore, we need not address it; it is incumbent upon an appellant to obtain a ruling from the trial court in order to preserve an argument for appeal. Akins v. State, 330 Ark. 228, 955 S.W.2d 483 (1997); Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). However, even if we were to consider this portion of Lewis's argument, it would be of no moment. The dispositive issue in this case, the validity of Lewis's consent to the search, is squarely before us. In pertinent part, Rule 11.1 of the Arkansas Rules of Criminal Procedure states:

(a) An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search.

(b) The state has the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion.

We note first that this portion of Lewis's argument seems to be based on a faulty major premise that the lawfulness of the search of his vehicle was inextricably tied to the consent-to- search form. Lewis has not cited authority for this novel proposition, and with good reason: it is simply not the law. See, e.g., Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). Here, the trial court found that Lewis gave valid verbal consent to search his vehicle, and in our totality-of-the-circumstances analysis, we cannot find that the trial court clearly erred in making this finding.

Officer Short testified that he went over the consent-to-search form with Lewis, and Lewis "appeared to understand it to the best of my knowledge." Moreover, Lewis admitted that he consented to the search, anticipating that the police would only look in the body of his truck. Finally, we note that Lewis testified at the suppression hearing, and the trial court was able to observe firsthand Lewis's ability to comprehend the English language. Under these circumstances, the trial judge had a particularly solid basis for evaluating the validity of Lewis's consent. We are mindful that the testimony regarding Lewis's consent was somewhat contradictory. However, it is settled law that we defer to the trial court's assessment of the credibility of witnesses. Id.; Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). Accordingly, we hold that the trial court did not err in denying Lewis's suppression motion.

Affirmed.

Crabtree and Glover, JJ., agree.