Hammons v. State

Billy Lowell HAMMONS v. STATE of Arkansas

CR 96-413                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 10, 1997


1.   Motions -- motion to suppress -- standard of review. -- In reviewing a
     trial court's denial of a motion to suppress, the supreme
     court makes an independent determination based on the totality
     of the circumstances and reverses only if the ruling is
     clearly against the preponderance of the evidence.

2.   Search & seizure -- "reasonable suspicion" defined for purposes of Ark. R.
     Crim. P. 3.1. -- For purposes of Ark. R. Crim. P. 3.1, which
     authorizes a law enforcement officer to stop and detain any
     person who he reasonably suspects is committing, has
     committed, or is about to commit a felony or a misdemeanor
     involving danger of forcible injury, "reasonable suspicion" is
     defined as suspicion based upon facts or circumstances that
     give rise to more than a bare, imaginary, or purely
     conjectural suspicion.

3.   Criminal law -- allowable scope of investigation of criminal activities. -
     - So long as a law enforcement officer does not invade the
     privacy and freedom of others, he is free to investigate any
     police matter in any manner not prohibited by law, including
     the use of anonymous tips. 
4.   Search & seizure -- when person is "seized" -- approach of police officer
     to car does not constitute seizure. -- A person is "seized" for
     purposes of the Fourth Amendment when, in view of all of the
     circumstances surrounding the incident, a reasonable person
     would have believed that he was not free to leave; the mere
     approach of a police officer to a car parked in a public place
     does not constitute a seizure.

5.   Search & seizure -- actual criminal activity is not test for determining
     whether stop passes muster. -- Actual criminal activity is not the
     test for determining whether a stop passes muster; it is
     whether reasonable suspicion of criminal activity exists.

6.   Search & seizure -- denial of motion to suppress affirmed -- actions
     raised reasonable suspicion to warrant stop and detention. -- The
     supreme court affirmed the trial court's denial of appellant's
     motion to suppress the drugs seized in his arrest where the
     combined circumstances -- including information gathered from
     anonymous tips, the hour of the night, the location, the
     police department's policy of assisting the Alcoholic Beverage
     Control Commission in policing illegal drug and alcohol
     consumption in motor vehicles, and the dome light of
     appellant's vehicle being on -- justified an approach by
     police for investigative purposes under Ark. R. Crim. P. 2.2,
     and where a law enforcement officer saw appellant reach under
     the front seat of the vehicle and produce what he believed was
     a gun raised reasonable suspicion to warrant a stop and
     detention under Ark. R. Crim. P. 3.1 as either a potential
     felonious act or a misdemeanor causing injury by force. 


     Appeal from Sebastian Circuit Court; Floyd G. Rogers, Judge;
affirmed.
     Eddie N. Christian, by: Eddie Christian, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.
     Appellant Billy Lowell Hammons appeals his convictions and
sentences for possession of methamphetamine with intent to deliver
and possession of marijuana with intent to deliver.  He was
sentenced to 40 years in prison with 10 years suspended on the
first conviction and to 10 years on the second conviction, with the
two sentences to run concurrently.  He appeals and urges that the
trial court erred in refusing to suppress the drugs seized in what
he terms was an illegal arrest.  We find no error in the trial
court's ruling, and we affirm.
     On March 1, 1995, Hammons was arrested for possession of
controlled substances.  He was charged on March 3, 1995, with
possession of methamphetamine and marijuana with intent to deliver
and with possession of dilaudid.  The dilaudid charge was later
nolle prossed.  On June 12, 1995, Hammons moved to suppress certain
drugs that were seized by a Fort Smith police detective following
his March 1, 1995 arrest.  At the hearing on Hammons's motion, Fort
Smith Police Detective Dennis Alexander described the events
surrounding the arrest.  He testified that he received an anonymous
call from a woman on February 23, 1995.  The caller informed him
that a man called "Wild Bill" of Wilburton, Oklahoma, was supplying
a number of smaller dealers with methamphetamine in both eastern
Oklahoma and western Arkansas.  She said these smaller dealers were
friends of hers who had been arrested.  One was the caller's
roommate, and one was a woman named Shannon Smith.  She related to
Detective Alexander that "Wild Bill" drove a 70 or 80 model black
Corvette, and that he was in his late 30's or early 40's, had a
slender build, and often wore a mustache and a beard.  Detective
Alexander testified at the hearing that the caller's information
was reliable because she was "very knowledgeable" about the
methamphetamine trade in the area and about people who had been
arrested for methamphetamine sales.
     Detective Alexander next testified that on March 1, 1995, he
received information from Fort Smith Police Detective Wayne
Barnett, who had received information from the police dispatcher
about a second anonymous call from a female who stated that one of
the largest drug suppliers in the area would be at Old Town Grain
and Feed, a local bar that sold alcoholic beverages, that evening
and that he would be driving a black Corvette.  Based on the tip,
Detective Alexander and Detective Barnett drove through the area of
Old Town three times and did not see the black Corvette.  At
approximately 11:30 p.m. that night, Detective Alexander, who was
now alone and driving a Chevrolet Astro minivan, drove by Old Town
and saw a black Corvette backed into a parking spot with two people
sitting in the car.  The dome light in the Corvette was on, which
Detective Alexander testified was significant because he routinely
checked cars in parking lots of drinking establishments with dome
lights on to assist the State Alcoholic Beverage Commission in
policing illegal drug and alcohol consumption in motor vehicles.
     Detective Alexander stated that he circled the block and
entered the parking lot, which was open to the public.  As he
pulled within five to ten feet of the Corvette, his headlights
illuminated two people in the car.  They both looked up and then
began "scrambling" inside the car.  Detective Alexander explained
that they "began reaching down under the seat, turning and twisting
as if they were trying to conceal something or put something up." 
He could look down inside the car from his vantage point and
testified that he saw the driver (later identified as Hammons)
reach under his seat and come up with what the police detective
believed to be a gun.  At that point, Detective Alexander stated
that he turned his blue light on to let the two people know that he
was a police detective.  (On cross-examination Detective Alexander
contradicted himself and testified that he turned on his blue light
when he saw the "scrambling.")  He drew his pistol, stepped down
from the minivan, and ordered the passengers to show their hands. 
The passenger (later identified as Michael David Rhea) complied,
but Hammons had to be told five or six times to show his hands. 
After reaching under the seat again, Hammons did as he was
instructed.
     Hammons was ordered to exit the vehicle, and while doing so,
he dropped a brown pouch on the ground.  The police detective
patted Hammons down for weapons and discovered a vial in his right
coat pocket that contained an off-white, rock-like substance that
he believed to be methamphetamine.  He testified that he also found
suspicious items on Rhea and in the pouch that Hammons dropped on
the ground.  Hammons told Detective Alexander that his nickname was
"Wild Bill," and that he was from Wilburton, Oklahoma.  A pistol
was found in the Corvette under the driver's seat, with the
magazine sitting on the console.
     On cross-examination, Hammons's counsel attacked the
reliability of the information received by Detective Alexander from
the anonymous caller on February 23, 1995.  Hammons's counsel
emphasized that much of the caller's references to the
methamphetamine trade could have been garnered from public records. 
He also questioned the accuracy of the information that had been
relayed to Detective Alexander from the March 1, 1995 anonymous
caller and later noted during examination of the police dispatcher
that no details regarding name, time, or whether illegal drug
transactions would transpire were imparted to the dispatcher.
     The trial court denied Hammons's motion to suppress, and in
doing so stated that it was basing its ruling primarily on the
police detective's statement that the grounds for arrest developed
on the parking lot where a dome light was on and where the
detective saw the occupants "squirming" about in the Corvette,
trying to avoid something.  The trial court concluded that these
actions raised reasonable suspicion for the police detective to at
least check out the circumstances.  The trial court also concluded
that in simply pulling the minivan up to the Corvette, the police
detective had not blocked the Corvette's path, and that Hammons was
free to leave.  The court further observed that the sighted gun
properly played a role in Detective Alexander's actions.  Following
this ruling by the trial court, Hammons entered a conditional plea
of nolo contendere to the charges pursuant to Ark. R. Crim. P. 24.3
and was sentenced accordingly.
     The sole issue on appeal is whether Detective Alexander had
grounds to effect a seizure of Hammons under Ark. R. Crim. P. 3.1. 
In reviewing a trial court's denial of a motion to suppress, this
court makes an independent determination based on the totality of
the circumstances and reverses only if the ruling is clearly
against the preponderance of the evidence.  Evans v. State, 326
Ark. 279, 931 S.W.2d 136 (1996).  See also Illinois v. Gates, 462 U.S. 213 (1983).
     Rule 3.1 of the Arkansas Rules of Criminal Procedure provides
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.
Id.  This court has defined "reasonable suspicion" as "suspicion
based upon facts or circumstances which give rise to more than a
bare, imaginary, or purely conjectural suspicion."  Williams v.
State, 321 Ark. 344, 348, 902 S.W.2d 767, 769 (1995).
     Hammons advances the theory that this was essentially an
"informant" case, and that Detective Alexander's information was
insufficient to form the reasonable suspicion necessary under Ark.
R. Crim. P. 3.1 for a stop and detention.  In making this
assertion, he relies on Lambert v. State, 34 Ark. App. 227, 808 S.W.2d 788 (1991).  In Lambert, the Arkansas State Police received
an anonymous tip from a person in Little Rock that a man named
"Jerry" would be leaving the Hot Springs area en route to Little
Rock at approximately 3:00 p.m. and would be transporting
approximately ten pounds of marijuana in a black truck with
"Woodline Motor Freight" written on its side in orange letters. 
Acting on this information, a state trooper stopped a truck
matching this description at approximately 3:50 p.m.  The truck was
heading from Hot Springs toward Little Rock on Highway 70.  The
driver identified himself as Jerry Lambert and admitted that he had
marijuana in his vehicle.
     Lambert's motion to suppress the marijuana was denied, and he
pled guilty to possession of marijuana.  On appeal, the Arkansas
Court of Appeals reversed the trial court and suppressed the
evidence, relying primarily on Alabama v. White, 496 U.S. 325
(1990).  The United States Supreme Court refused to suppress the
evidence in Alabama v. White but did so because the information
collected from the anonymous tip was sufficiently corroborated. 
The court of appeals in Lambert, however, concluded that there was
insufficient corroboration in that case.  For example, the court
pointed out that there was no verification of the departure point
and no certainty that the driver was actually going to Little Rock. 
The court further made reference to an overall lack of detail in
the anonymous call.
     In Alabama v. White, supra, police officers received an
anonymous tip that Vanessa White would be leaving 235-C Lynwood
Terrace Apartments in Montgomery, Alabama, at a particular time in
a brown Plymouth Station Wagon with a broken right taillight.  The
caller stated that White would be in possession of a brown attach
case containing approximately one ounce of cocaine and that she
would be headed to the Dobey Motel.  The police officers proceeded
to the apartment complex, spotted White entering the station wagon,
pulled her over just short of the Dobey Motel, and discovered the
attach case.  The case contained marijuana, and approximately
three milligrams of cocaine were found in White's purse.  White
entered a conditional plea of guilty on the narcotics charges after
her motion to suppress was denied.  The Court of Criminal Appeals
of Alabama determined that the officers lacked the reasonable
suspicion necessary under Terry v. Ohio, 392 U.S. 1 (1968), and
reversed her conviction.  The Alabama Supreme Court denied
certiorari, but the United States Supreme Court granted certiorari
and reversed the intermediate appellate court.  The Court
acknowledged the general rule that an anonymous tip, standing
alone, would not meet the requisite "reasonable suspicion"
necessary for a stop under Terry v. Ohio, supra.  The Court
determined, however, that there was sufficient corroboration of the
anonymous tip to uphold the stop, emphasizing that under the
totality of the circumstances, the tip had proven to be reliable. 
The Court noted that the officers found a car matching the
description in front of building 235 of the apartment complex and
that the caller accurately predicted White's conduct of heading
directly to the Dobey Motel.
     Hammons argues that in the instant case Detective Alexander
made no attempt to investigate, confirm, or corroborate the
statements made in the March 1, 1995 anonymous telephone call.  He
further relies on Meadows v. State, 269 Ark. 380, 602 S.W.2d 636
(1980), for the proposition that his conduct and the conduct of his
passenger, Michael Rhea, did not arouse any suspicions.  In
Meadows, police officers attempted to justify the stop of the
defendant and another man for suspicious conduct because they
walked quickly past police officers and continued to look back at
them.  The police accosted the two individuals, asked for their
identification, and determined that the defendant had an
outstanding felony warrant.  After arresting the defendant, the
officers found heroin for which he was prosecuted.  This court
reversed due to the fact that the police officers lacked reasonable
suspicion for the stop under Rule 3.1.  We stated:
          Here the officer's sole reason for approaching the
     two men was their conduct in looking back and in
     quickening their pace upon being followed.  That conduct,
     however, could not possibly suggest that Meadows or
     Duncan had committed or were about to commit any
     particular type of felony or misdemeanor, which is
     necessarily what Rule 3.1 refers to.
Meadows v. State, 269 Ark. at 382-83, 602 S.W.2d  at 638 (emphasis
in original).  
     We affirm the trial court's ruling in the instant case, but we
do so based on what developed in the Old Town parking lot, which
aroused reasonable suspicion in Detective Alexander sufficient to
meet the requirements of Rule 3.1.  As an initial matter, we note
that this court has stated: "Generally speaking, an officer would
indeed be foolish to ignore an anonymous tip.  So long as the
officer does not invade the privacy and freedom of others, he is
free to investigate any police matter in any manner not prohibited
by law."  Willett v. State, 298 Ark. 588, 593, 769 S.W.2d 744, 746
(1989), quoting Burks v. State, 293 Ark. 374, 378, 738 S.W.2d 399,
401-02 (1987).
     We have no doubt that Detective Alexander was looking for a 70
or 80 model black Corvette in the Old Town area on the night of
March 1, 1995.  He admits as much.  But, in addition, one of the
jobs of the Fort Smith Police Department was to investigate "dome
light cases" for the potential use of alcohol or illicit drugs in
the parking lots of drinking establishments.  Detective Alexander
testified that he saw the black Corvette with the dome light on. 
He approached the Corvette on a parking lot open to the public to
take a closer look and that is when he saw the two men scrambling
and, ultimately, saw the gun in Hammons's hand.  He either
activated his blue light when he saw the movement in the Corvette,
which included reaching under the front seat, or when he saw what
he thought was a gun in Hammons's hand.
     A person is "seized" for purposes of the Fourth Amendment when
"in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave."  Smith v. State, 321 Ark. 580, 585, 906 S.W.2d 302, 305
(1995), quoting United States v. Mendenhall, 446 U.S. 544, 554,
reh'g denied, 448 U.S. 908 (1980).  Clearly, the mere approach of
a police officer to a car parked in a public place does not
constitute a seizure.  See, e.g., Thompson v. State, 303 Ark. 407,
797 S.W.2d 450 (1990); Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996); Adams v. State, 26 Ark. App. 15, 758 S.W.2d 709
(1988).
     For example, in Thompson v. State, supra, this court affirmed
a conviction for DWI after first stating that the police officer's
mere approach to the parked car did not rise to the level of a
seizure for Fourth Amendment purposes.  We further observed that a
nonseizure encounter was embraced in Ark. R. Crim. P. 2.2(a) as a
request for information or for cooperation in a criminal
investigation.  We noted that in simply approaching the car, the
police officer did not "restrain[] the liberty of the appellant by
means of physical force or a show of authority."  Thompson v.
State, 303 Ark. at 410, 797 S.W.2d  at 452.  See also Phillips v.
State, supra (involving an officer's approach to a van parked in
the middle of the road); Adams v. State, supra (involving an
approach to a car parked at night in a high school parking lot). 
Cf. United States v. Kim, 25 F.3d 1426 (9th Cir. 1994)(partial
blocking of appellant's automobile by police car did not foreclose
finding of no stop); United States v. Packer, 15 F.3d 654 (7th Cir.
1994)(stop occurred when officers blocked front and rear of
automobile and shined lights into appellant's car); United States
v. Encarnacion-Galvez, 964 F.2d 402 (5th Cir. 1992)(no stop
occurred when officers made no "display of authority" and did not
block appellant's automobile).
     In the instant case, the question of the time of Hammons's
seizure turns on when Detective Alexander showed a display of
authority such that a reasonable person would not feel free to
leave.  We have no doubt that this occurred when the police
detective put on his blue light.  On direct examination, the
detective's testimony was clear that he turned on his blue light
after he saw what he thought was a gun.  During cross-examination,
however, the detective answered that the blue light was activated
when he saw the two men scrambling in the Corvette, which was prior
to the time that he saw the gun.  These events, of course,
transpired in a matter of seconds, and the detective appeared to
give two different versions of their sequence.  It is probably more
believable that Hammons would pull out his pistol before the blue
light came on.  But, regardless, what decides this issue is the
trial court's statement that the presence of the gun was a factor
in its ruling that the stop passed muster.  We read that to mean
that the trial court gave credence to Detective Alexander's
rendition of events in his direct examination where he stated that
he turned on the blue light when he thought he saw the pistol. 
These combined circumstances were enough to raise reasonable
suspicions in the detective's mind about potential criminal
activity, including risk to his own personal safety, when the
anonymous tips, time, place, and actions by Hammons and Rhea,
including pulling out the pistol, are all factored into the
equation.  Again, actual criminal activity is not the test; it is
whether reasonable suspicion of criminal activity exists.
     In sum, the two anonymous tips caused Detective Alexander to
be in the Old Town vicinity the night of March 1, 1995, and to
enter the Old Town parking lot.  Though Hammons argues that the
police detective was only acting on the March 1, 1995 tip, we
believe it is reasonable to assume that both anonymous calls led
him to the parking lot on the night in question.  We further
believe that the information gathered from the tips in conjunction
with the hour of the night, the location, the policy of the Fort
Smith Police Department to assist ABC efforts, and the Corvette's
dome light being on justified an approach by Detective Alexander
for investigative purposes, as contemplated by Ark. R. Crim. P.
2.2.  The circumstances clearly warranted further inquiry.  Once
the two men began to "scramble" and reach under the front seat of
their vehicle and once Detective Alexander thought he saw a pistol,
this raised reasonable suspicion to warrant a stop and detention
under Ark. R. Crim. P. 3.1 as either a potential felonious act or
a misdemeanor causing injury by force.
     We affirm the trial court's denial of the motion to suppress. 
Had this been a case where Detective Alexander stopped, detained,
and then arrested Hammons solely on the basis of the anonymous
tips, we would reverse the trial court.  But it was not.  We agree
with the trial court that the actions on the Old Town parking lot
converted the matter into a situation where a Rule 3.1 stop and
detention was appropriate.
     Affirmed.