Kevin Omar Morrison v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

KEVIN OMAR MORRISON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-160

October 12, 2005

APPEAL FROM THE CIRCUIT COURT OF MONROE COUNTY

[NO. CR-04-78]

HONORABLE HARVEY LEE YATES,

JUDGE

AFFIRMED

Terry Crabtree, Judge

After the trial court denied his motion to suppress, appellant Kevin Omar Johnson pled guilty to possession of marijuana with intent to deliver, preserving the right to appeal the trial court's suppression decision pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure. Thus, the sole issue before us is whether the trial court's ruling was in error. We affirm.

The only witness at the suppression hearing was State Trooper Rodney Myers, who stopped the vehicle appellant was driving on April 20, 2004, as it was eastbound on I-40 in Monroe County. Myers stopped the vehicle, a Chevy pickup truck with Mississippi plates, because it had a broken windshield. Myers advised appellant why he had been stopped. Appellant produced a Kansas driver's license and told the officer that the vehicle was not his, but his "girl's." Myers asked appellant to step outside, and they stood at the rear of the vehicle. Myers noticed that the truck's bed had three bed liners, and he detected the odor of fresh paint, which was later determined to be Rhino-coat, a spray-on bed liner. Myers said that the truck was dirty and did not appear to have been recently painted. He said that the smell of paint on an older vehicle that did not appear to have any recent repairs alerted him to the possibility that there might be a compartment hidden in the bed, as had proven to be the case on two prior occasions.

The tailgate of the truck was down, and appellant remarked that he thought he had been stopped on account of that. Myers told him again that he had been stopped because of the windshield. Myers said that appellant was "fidgety," "very nervous," "incoherent," and that his "thoughts were not concentrated" on what was happening. While in this state, appellant asked the officer why he had been stopped, to which Myers replied, for a third time, that he had been stopped because of the cracked windshield. Appellant's behavior prompted Myers to ask appellant if he had been drinking.

While sitting in the patrol car, Myers asked appellant from where he had driven. Appellant said that he was coming from Mississippi. This struck Myers as odd, since appellant was traveling east in the direction of Mississippi, which lies to the southeast. Myers asked appellant where in Mississippi, and appellant replied, "nervously," that he had come from Greenwood, Mississippi. Myers then asked appellant where he was going, and appellant said that he was driving to Greenwood. Myers questioned appellant about coming and going from the same place, and appellant "backtracked," saying that he had been in Little Rock. When asked where in Little Rock, appellant said that he had been at "some girl's" but that he was not sure exactly where. Appellant then began mumbling and talking to himself, and when Myers asked him what he was saying, appellant responded that "his girl was going to have him f-upped." Appellant then talked about being married, and he told the officer that the vehicle belonged to a woman named Shavona Ivory. Appellant also talked about women, including Britney Spears. Myers asked appellant about the Kansas driver's license, and appellant advised that he was "just roaming."

During the course of their conversation, Myers advised appellant that he was going to issue a warning ticket. Appellant seemed relieved, but Myers said that the level of appellant's nervousness did not decrease and that it remained elevated throughout the encounter. Myers explained that it was normal for individuals to be nervous during a traffic stop, at least initially, but that their nervousness would usually subside as the encounter progressed, particularly once it was learned that only a warning ticket would be issued. Also during the course of their discussions, Myers asked appellant for permission to search the vehicle, which appellant granted.

The NCIC/ACIC check revealed a criminal history of "illegal entry under U.S.C. section 4" in 1998, the illegal carrying of a weapon in 1998, and possession of a Schedule I controlled substance in 1998. When Myers handed appellant the warning ticket, he asked appellant if he still had permission to search the vehicle. Appellant stated, "It's all on you," and Myers advised appellant that it was his choice and that he did not have to allow a search. Appellant then withdrew his consent. Myers then told appellant that he was free to leave, but that he was detaining the vehicle for a canine search.1 Appellant opted to stay, at which time Myers conducted a safety pat-down search for weapons. Myers, a certified canine handler, ran his dog around the vehicle. The dog alerted on the bed of the truck, and over one hundred pounds of marijuana was found in a compartment tucked between the bed liners.

The trial court was satisfied that Trooper Myers had reasonable suspicion to use the canine. In its order, the court wrote:

Specifically, 1) the defendant acted as if he were under the influence of alcohol or a controlled substance. The defendant's nervousness, which did not subside; the defendant's talking and mumbling to himself that females were out to get him; the usage of a vehicle that did not belong to him; possession of a Kansas driver's license without explanation or ties to that state; the defendant's explanation that he was coming from Mississippi but he was headed east on I-40, which is the wrong direction. The defendant's statement that he was coming from or going to Greenwood, Mississippi; the defendant's changing his origination to that of Little Rock. The defendant's inability to state where he had been in Little Rock, and the criminal history check that showed criminal activity. Based upon this information, the court finds that there was reasonable suspicion for the search. Additionally, the officer noticed the presence of three (3) bed liners and an odor of a paint-like smell that turned out to be fresh Rhino bed liner coating.

In reviewing the trial court's denial of a motion to suppress evidence, we conduct 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 probable cause, giving due weight to inferences drawn by the trial court. Dowty v. State, ___ Ark. ___, ___ S.W.3d ___ (June 23, 2005).

Our courts recognize that, as part of a valid traffic stop, a police officer may detain a traffic offender while he completes certain routine tasks. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). As the court in Laime observed:

[H]aving made a valid traffic stop, the police officer may detain the offending motorist while the officer completes a number of routine but somewhat time-consuming tasks related to the traffic violation, such as computerized checks of the vehicle's registration and the driver's license and criminal history, and the writing up of a citation or warning. See United States v. Carrazco, 91 F.3d 65, 66 (8th Cir. 1996). During this process, the officer may ask the motorist routine questions such as his destination, the purpose of the trip, or whether the officer may search the vehicle, and he may act on whatever information is volunteered.

Id. at 157-58, 60 S.W.3d at 474-75. However, once the legitimate purpose of a valid traffic stop is over, in order for a motorist to be further detained, an officer must have a reasonable suspicion that the person he has stopped is committing, has committed, or is about to commit a felony or misdemeanor involving danger to persons or property in accordance with Ark. R. Crim. P. 3.1. See Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). Reasonable suspicion is defined as a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to imaginary or purely conjectural suspicion. Ark. R. Crim. P. 2.1. Whether there is reasonable suspicion depends on whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons that the person may be involved in criminal activity. Lilley v. State, ___ Ark. ___, ___ S.W.3d ___ (May 26, 2005).

Appellant contends that this case is indistinguishable from Sims v. State, supra. There, the court found reasonable suspicion lacking just because Sims was nervous and sweating in the heat of July, and because he had made an odd remark that the court viewed as merely a nervous attempt at conversation. Similarly, in Lilley v. State, supra, the court held that there was nothing inherently suspicious about the use of air fresheners combined with nervousness and the fact that the vehicle was rented by a third party. The court emphasized that nervousness, without any other questionable circumstances, does not constitute reasonable suspicion. The court said, "We are unwilling to condone a dog sniff following the conclusion of a traffic stop because someone is traveling through Arkansas in a rental car which smells of air freshener and that person appears nervous after being stopped by police officers." Id. at ___, ___ S.W.3d at ___. In so holding, the court agreed with the Eighth Circuit that "it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation." Id. at ___, ___ S.W.3d at ___ (quoting United States v. Beck, 140 F.3d 1129, 1137 (8th Cir. 1998)). In Burks v. State, ___ Ark. ___, ___ S.W.3d ___ (June 9, 2005), the court found the existence of such concrete reasons supporting reasonable suspicion where Burks' nervousness combined with unusual travel plans and circumstances which indicated that the vehicle might have been stolen.

As in all of these cases, our analysis focuses on what facts Trooper Myers had gleaned before the traffic stop was over. Appellant was nervous to the point of incoherency, and he remained unusually nervous throughout the encounter; he was mumbling to himself that he was being "f-upped" by his girl; he was traveling in an out-of-state vehicle that did not belong to him; he had a driver's license from yet another state without explanation; he gave an implausible account as to his point of origin and then changed his story but could not say exactly where he had been; and he had a criminal history that included the possession of illegal narcotics. Most telling are the facts that the vehicle was dirty, had a number of bed liners, and smelled of fresh paint, yet there was no visible sign of recent repair, indicating that the bed might have contained a false compartment. We are convinced that these circumstances, when taken together, support the trial court's conclusion that the officer could reasonably suspect that criminal activity was afoot so as to justify further detention for the use of the canine. We further note that the use of a drug dog during a valid traffic stop does not constitute a search within the meaning of the Fourth Amendment. Illinois v. Caballes, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005); see also Burks v. State, supra; Sims v. State, supra. We uphold thetrial court's decision denying the motion to suppress.

Affirmed.

Hart and Glover, JJ., agree.

1 At the hearing, the prosecution maintained, in part, that there was no illegal detention because the vehicle, but not appellant was detained, citing United States v. Yang, 345 F.3d 650 (8th Cir. 2003). We regard this as a distinction without any legal significance and note that Yang does not purport to create such a distinction.