Penister v. State
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Cite as 2011 Ark. App. 405
ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR10-579
Opinion Delivered J UNE
TERRY PENISTER
APPELLANT
1, 2011
APPEAL FROM THE ARKANSAS
COUNTY CIRCUIT COURT,
SOUTHERN DISTRICT
[NO. CR-2009-24]
V.
HONORABLE DAVID G. HENRY,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
ROBERT J. GLADWIN, Judge
Appellant Terry Penister conditionally pled guilty to theft of property and received a
ten-year sentence in the Arkansas Department of Correction. On appeal, he contends that the
trial court erred in denying his suppression motion. We disagree and affirm.
At the hearing on appellant’s motion to suppress evidence, Mr. Daniel Cupples testified
that on April 26, 2009, he drove by the business of A & B Sales in DeWitt, Arkansas, around
8:20 p.m., when he saw a man putting some car wheels in a ditch. Mr. Cupples then went
to his father’s house, where he called the police. David Scott Malone, a police officer for the
City of DeWitt, testified that he received a call regarding a theft in progress, drove over to
A & B Sales, and saw appellant’s vehicle coming from the road beside the store. Officer
Malone further stated that he stopped the vehicle because he had some suspicion that the car
Cite as 2011 Ark. App. 405
was involved in the theft. At the time of the stop, Officer Malone had no information about
the suspect or about a vehicle.
James “Dude” Paxton, a DeWitt police officer, testified that, after appellant was
stopped and detained by Officer Malone, he arrived with Mr. Cupples, who identified
appellant as the man with the wheels. Officer Paxton then opened the trunk, and the wheels
were in plain sight. Appellant was arrested and later conditionally pled guilty to theft of
property, with the right to appeal the denial of his motion to suppress. The trial court granted
appellant’s motion for a belated appeal. On appeal, this court ordered rebriefing due to
deficiencies in the appellant’s brief. See Penister v. State, 2011 Ark. App. 121. Before us is
appellant’s corrected brief in compliance with this court’s opinion.
In reviewing the denial of a motion to suppress evidence, our appellate courts conduct
a de novo review based upon the totality of the circumstances, reversing only if the circuit
court’s ruling is clearly against the preponderance of the evidence. Stokes v. State, 375 Ark.
394, 291 S.W.3d 155 (2009). Issues regarding the credibility of witnesses testifying at a
suppression hearing are within the province of the circuit court. Id. Any conflicts in the
testimony are for the circuit court to resolve, as it is in a superior position to determine the
credibility of the witnesses. Id.
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
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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. See Ark. R. Crim. P. 3.1 (2010). The justification for the
investigative stop depends upon whether, under the totality of the circumstances, the police
have specific, particularized, and articulable reasons indicating that the person may be involved
in criminal activity. Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882
(1982). “Reasonable suspicion” means 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 an
imaginary or purely conjectural suspicion. Ark. R. Crim. P. 2.1 (2010).
Rule 14.1 of the Arkansas Rules of Criminal Procedure (2010), provides in pertinent
part that an officer who has reasonable cause to believe that a moving or readily movable
vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and
search the vehicle and may seize things subject to seizure discovered in the course of the
search where the vehicle is on a public way. Ark. R. Crim P. 14.1(a)(i). Rule 2.2(a) of the
Arkansas Rules of Criminal Procedure (2010), provides that a law-enforcement officer may
request any person to furnish information or otherwise cooperate in the investigation or
prevention of crime. The rule allows that an officer may request the person to respond to
questions, to appear at a police station, or to comply with any other reasonable request. Ark.
R. Crim. P. 2.2(a).
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Appellant claims that his constitutional right against unreasonable search was violated
when officers conducted the stop and warrantless search of his vehicle. Appellant contends
that Officer Malone’s testimony was that appellant had not violated any traffic laws; that he
knew there was a theft in progress, but had no information about the suspect or the vehicle;
that he stopped appellant’s vehicle because it was at the scene; and that he did not have
anything more than a mere suspicion when he made the traffic stop. Appellant argues that
probable cause was necessary for the officer to stop and search his vehicle without a warrant.
He claims that Officer Malone did not have reasonable or probable cause to stop and detain
him, as appellant had committed no traffic violation.
Appellant argues that Officer Malone did not comply with the spirit of Rule 2.2(a)
when he made the stop. He contends that there is no evidence of Officer Malone asking
appellant any questions or requesting information concerning the alleged crime. Appellant also
contends that Officer Malone made no indication, or take reasonable steps to inform appellant
that he had no legal obligation to furnish such information. Further, appellant argues that
Officer Malone did not meet the requirements of reasonable cause contained in Rule 14.1,
or those of reasonable suspicion in Rule 2.1. He claims that Officer Malone stopped him
merely because he happened to drive down a public road close to the alleged crime scene, not
because he was violating any law that would have triggered the traffic stop. Appellant asserts
that it was not until Officer Paxton arrived with the witness that Officer Malone had more
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than a suspicion. Therefore, appellant contends that his constitutional rights were violated, and
the evidence should be suppressed.
The State claims that the only issue preserved for appeal is whether the initial stop of
appellant was lawful because appellant conceded at trial that “once the witness was brought
to the scene to identify the driver and other information was shared with the officers, the
search could lawfully be conducted.” We agree. A party is limited to the scope and nature of
their arguments made below. See, e.g., Hunter v. State, 330 Ark. 198, 952 S.W.2d 145 (1997).
Therefore, we will only examine appellant’s arguments related to the initial stop.
As noted by the trial court’s ruling denying appellant’s motion to suppress, Rule 2.2(a)
of the Arkansas Rules of Criminal Procedure allows a police officer to request information
from any person or ask them to cooperate during the investigation of a particular crime. An
officer’s approach of a citizen pursuant to an investigation must be reasonable under the
circumstances. E.g., Sanders v. State, 76 Ark. App. 104, 61 S.W.3d 871 (2001).
The State compares Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982), with the
instant case. In Baxter, police officers heard the broadcast of a robbery and immediately began
patrolling a city park, one-fourth of a mile from the scene of the robbery. Id. at 541, 626
S.W.2d at 936. An officer met Baxter’s car, turned around, followed it, and then stopped it.
Id. The court held that the stop was lawful because the scene of the crime was nearby; the
time sequence was such that it was likely that the vehicle in the park had been involved in the
robbery—it being the only vehicle in the park; the intrusion was minimal compared to the
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government interest; the crime under investigation, a felony, was serious; and the initial
encounter was not aggressive. Id. at 544, 626 S.W.2d at 937.
In the instant case, Officer Malone arrived on the scene less than thirty seconds after
the police broadcast. Appellant was seen driving away from the scene. Appellant’s vehicle was
the only one in the area. The stop was brief, which was a minimal intrusion compared to the
government’s substantial interest in investigating a serious crime. Finally, the stop was
nonaggressive, as appellant was not placed in custody until after he and the vehicle were
identified by the witness. Accordingly, we affirm.
Affirmed.
H ART and A BRAMSON, JJ., agree.
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