Phillips v. State

James Eldridge PHILLIPS v. STATE of Arkansas

CA CR 95-379                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                Opinion delivered March 20, 1996


1.   Appeal & error -- review of denial of motion to suppress --
     when reversed. -- In reviewing a trial court's denial of a
     motion to suppress evidence, the appellate court makes an
     independent determination based on the totality of the
     circumstances and reverses the trial court's ruling only if it
     is clearly against the preponderance of the evidence. 

2.   Search & seizure -- seizure of a person within meaning of
     fourth amendment -- officer's subjective intention not
     dispositive of whether there has been a seizure. --  
     Whether a person has been seized within the meaning of the 
     fourth amendment depends on whether, in view of all of the
     circumstances surrounding the incident, a reasonable person
     would have believed that he was not free to leave; the
     officer's subjective intention is not dispositive of whether
     there has been a seizure; this is also the standard to
     determine whether a person has been detained under Ark. Code
     Ann.  16-81-204(a) (1987) and Ark. R. Crim. P. 3.1.

3.   Criminal procedure -- no seizure under fourth amendment for
     officer to approach a car parked in a public place to
     determine it there is anything wrong -- there was no seizure
     in this instance. -- It is not a seizure under the fourth
     amendment for a police officer to approach a car parked in a
     public place to determine whether there is anything wrong;
     here there was no evidence in the record indicating that the
     officer restrained the liberty of the appellant by means of
     physical force or a show of authority, thus, there was no
     "seizure" under the fourth amendment and no detention under
     Ark. Code Ann.  16-81-204(a) (1987) and Ark. R. Crim. P. 3.1
     until after the van window was rolled down and the officer
     smelled marijuana.

4.   Criminal procedure -- smell of marijuana gave officer
     reasonable suspicion occupants of van were committing, had
     committed, or were about to commit a crime -- appellant was
     not illegally detained. -- Once appellant had rolled down the
     window and the officer smelled marijuana, the officer had a
     reasonable suspicion that the occupants of the van were
     committing, had committed, or were about to commit a crime;
     this authorized the officer to detain them for a reasonable
     time under Ark. R. Crim. P. 3.1 in order to verify their
     identification or determine the lawfulness of their conduct;
     thus, appellant's claim that he was illegally detained was
     without merit.

5.   Search & seizure -- plain view doctrine discussed. -- Under
     the plain view doctrine, seized evidence is admissible when
     the initial intrusion was lawful, the discovery of the
     evidence was inadvertent, and the incriminating nature of the
     evidence was immediately apparent.

6.   Search & seizure -- evidence in plain view -- appellant's
     motion to suppress properly denied. -- The officer's discovery
     of the evidence was inadvertent where he stated that he
     noticed the cellophane package rolled up in appellant's wallet
     when appellant was flipping through it to find his driver's
     license; the incriminating nature of the package was
     immediately apparent in light of the fact that the officer
     smelled marijuana, the fact that appellant admitted to having
     smoked marijuana earlier in the day, and the fact that a
     suspicious packet was rolled up in appellant's wallet;
     therefore, the trial court did not err in failing to grant
     appellant's motion to suppress the marijuana.

7.   Search & seizure -- warrantless search of van was
     constitutional -- officer, incident to lawful arrest of
     vehicle occupants, may also search the passenger compartment
     and any containers found within it. -- Appellant's contention
     that the officer's warrantless search of the van violated his
     fourth amendment rights because the officer did not articulate
     any reason to suspect that the van contained items subject to
     seizure or that the van contained weapons failed because an
     officer, incident to a lawful custodial arrest of the
     occupants of a vehicle, may contemporaneously search the
     passenger compartment and any containers found within the
     passenger compartment of the vehicle. 


     Appeal from White Circuit Court; Robert Edwards, Judge;
affirmed.
     Robert Meurer, for appellant.
     Winston Bryant, Att'y Gen., by:  Joseph V. Svoboda, Asst.
Att'y Gen., for appellee.

     John F. Stroud, Jr., Judge.
*ADVREPCA9*               DIVISION III









JAMES ELDRIDGE PHILLIPS
                     APPELLANT

V.


STATE OF ARKANSAS
                      APPELLEE



CACR95-379

                                                   March 20, 1996


APPEAL FROM THE WHITE COUNTY
CIRCUIT COURT [CR94-77]

HONORABLE ROBERT EDWARDS,
CIRCUIT JUDGE


AFFIRMED





                   John F. Stroud, Jr., Judge.



     James Phillips was charged with possession of a controlled
substance, methamphetamine.  After a pretrial motion to suppress
evidence was denied, Phillips entered a conditional plea of guilty
under Ark. R. Crim. P. 24.3(b).  He was sentenced to three years
imprisonment with eighteen months suspended.
     Phillip Hydron, a White County Deputy Sheriff, testified at
the suppression hearing.  He stated that on November 25, 1993, he
was on patrol near Higginson when he saw a van stopped in the
middle of the road.  He said that the van appeared to have a
problem, so he stopped to investigate.  When appellant rolled down
the driverþs side window, Officer Hydron smelled marijuana.
     Officer Hydron asked appellant for his driverþs license, and
appellant began flipping through his billfold to retrieve it. 
Hydron said that he saw a plastic package rolled up in appellantþs
wallet.  When asked what was in the package, appellant shrugged his
shoulders.  Then the officer asked about the smell of marijuana and
appellant said that he and his buddy had smoked some earlier that
day.  Officer Hydron asked for the plastic package, and appellant
gave it to him.  There was what appeared to be marijuana inside the
package.  Hydron read appellant his Miranda rights and arrested him
for possession of a controlled substance.
     After he placed appellant in the patrol car, Officer Hydron
conducted a search of the van.  In a jacket, he found a pipe used
for smoking marijuana.  In another jacket, he found a syringe, a
spoon, some cotton, and a white plastic package filled with white
powder.  
     At the detention center, appellant was again advised of his
rights.  Appellant then gave a statement in which he admitted that
the marijuana and the drug paraphernalia were his.  He also
admitted that the white powder was his and that it was
methamphetamine.
     Appellant argues that the trial court erred in refusing to
grant his motion to suppress the evidence discovered by the officer
because he had not been lawfully detained or arrested prior to the
discovery of the marijuana in his wallet.  He also argues that the
evidence should have been suppressed because the searches of both
his wallet and his van were unlawful.
     In reviewing a trial courtþs denial of a motion to suppress
evidence, we make an independent determination based on the
totality of the circumstances and reverse the trial courtþs ruling
only if it is clearly against the preponderance of the evidence. 
Roark v.State, 46 Ark. App. 49, 876 S.W.2d 596 (1994); Bond v.
State, 45 Ark. App. 177, 873 S.W.2d 569 (1994).  
     We first address appellantþs contention that he was illegally
detained by Officer Hydron.  Appellant argues that Ark. Code Ann.
 16-81-204(a) (1987), Ark. R. Crim. P. 3.1, and the fourth
amendment require that an officer must reasonably suspect that a
person is committing, has committed, or is about to commit a crime
before he can detain that person.  However, not all personal
intercourse between policemen and citizens involves þseizuresþ of
persons under the fourth amendment.  Thompson v. State, 303 Ark.
407, 797 S.W.2d 450 (1990).  Likewise, not all personal intercourse
between policemen and citizens involves a detention under Ark. Code
Ann.  16-81-204(a) (1987) and Ark. R. Crim. P. 3.1.  See Thompson,
supra; Adams v. State, 26 Ark. App. 15, 758 S.W.2d 709 (1988); and
Ark. R. Crim. P. 2.2(a).  
     Although Officer Hydron testified that he would have been
suspicious if appellant had attempted to leave after Hydron stopped
and walked toward appellantþs van and that he would still have
wanted to question him, the officerþs subjective intention is not
dispositive of whether there has been a seizure.  Whether a person
has been seized within the meaning of the fourth amendment depends
on whether, 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, 906 S.W.2d 302 (1995)
(citing United States v. Mendenhall, 446 U.S. 544, reh'g denied,
448 U.S. 908 (1980)).  We find this reasoning persuasive and hold
that this is also the standard to determine whether a person has
been detained under Ark. Code Ann.  16-81-204(a) (1987) and
Ark. R. Crim. P. 3.1.  
     The result in this case is controlled by the holding in
Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990), in which
the Arkansas Supreme Court found that it was not a seizure under
the fourth amendment for a police officer to approach a car parked
in a public place to determine whether there was anything wrong. 
Just as in Thompson, supra, there is no evidence in the record
indicating that the officer restrained the liberty of the appellant
by means of physical force or a show of authority.  Thus, there was
no þseizureþ under the fourth amendment and no detention under Ark.
Code Ann.  16-81-204(a) (1987) and Ark. R. Crim. P. 3.1 until
after the van window was rolled down and Officer Hydron smelled
marijuana. 
     Once appellant had rolled down the window and Officer Hydron
smelled marijuana, the officer had a reasonable suspicion that the
occupants of the van were committing, had committed, or were about
to commit a crime.  This authorized the officer to detain them for
a reasonable time under Ark. R. Crim. P. 3.1 in order to verify
their identification or determine the lawfulness of their conduct. 
Adams, supra.  Thus, appellant's claim that he was illegally
detained is without merit.
     Appellantþs second contention is that the trial court should
have suppressed the evidence because the officer did not articulate
any of the factors contained in Ark. Code Ann.  16-81-203 (1987)
as a basis for his seizing and searching the cellophane which he
had observed in appellantþs wallet.  Ark. Code Ann.  16-81-203
allows police officers to conduct a warrantless search of a person
who has been detained if he reasonably suspects that the person is
armed and presently dangerous to the officer or others.  Although
it is true that Ark. Code Ann.  16-81-203 would not justify a
warrantless search in this case, the plain view exception to the
warrant requirement rendered the warrantless search lawful.  
     Under the plain view doctrine, seized evidence is admissible
when the initial intrusion was lawful, the discovery of the
evidence was inadvertent, and the incriminating nature of the
evidence was immediately apparent.  Bond, supra.  As previously
discussed, Officer Hydronþs intrusion was lawful.  He stated that
he noticed the cellophane package rolled up in appellantþs wallet
when appellant was flipping through it to find his driverþs
license; therefore, the discovery was inadvertent.  The
incriminating nature of the package was immediately apparent in
light of the fact that the officer smelled marijuana, the fact that
appellant admitted to having smoked marijuana earlier in the day,
and the fact that a suspicious packet was rolled up in appellantþs
wallet.  See Washington v. State, 42 Ark. App. 188, 856 S.W.2d 631
(1993).  Therefore, the trial court did not err in failing to grant
appellantþs motion to suppress the marijuana.
     Appellantþs final contention is that the trial court erred in
refusing to suppress the methamphetamines seized when Officer
Hydron searched the van and to suppress the confession given by
appellant after his arrest.  Appellant contends that the officerþs
warrantless search of the van violated his fourth amendment rights
because the officer did not articulate any reason to suspect that
the van contained items subject to seizure or that the van
contained weapons.  This argument fails because an officer,
incident to a lawful custodial arrest of the occupants of a
vehicle, may contemporaneously search the passenger compartment and
any containers found within the passenger compartment of the
vehicle.  Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995);
Miller v. State, 44 Ark. App. 112, 868 S.W.2d 510 (1993).
     Affirmed. 
     Mayfield and Neal, JJ., agree.