Brunson v. State

Alton Levern BRUNSON v. STATE of Arkansas

CA CR 95-628                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
                 Opinion delivered June 26, 1996


1.   Appeal & error -- review of denial of motion to suppress. --
     In reviewing the denial of a motion to suppress evidence, the
     appellate court makes an independent determination based on
     the totality of the circumstances and reverses the decision
     only if the trial courtþs ruling was clearly against the
     preponderance of the evidence or was clearly erroneous; here,
     the appellate court reviewed the evidence in light of this
     standard and concluded that the trial courtþs denial of
     appellantþs motion to suppress was clearly erroneous, thereby
     compelling reversal.

2.   Motions -- motion to suppress -- factors to be considered. --
     The Fourth Amendment to the Constitution of the United States
     protects persons from unreasonable searches and seizures; this
     constitutional guarantee means that consideration of
     appellantþs motion to suppress requires analysis of several
     factors: (1) whether he was searched based upon a warrant; (2)
     if not, whether the warrantless search was based upon probable
     cause; and (3) if that was not the case, whether the
     warrantless search was incidental to a contemporaneous lawful
     arrest; none of these factors applied to this case.

3.   Search & seizure -- vehicular search -- no proof officer
     searched vehicle after smelling marijuana but before searching
     appellant. -- There was no proof that the police officer
     searched the vehicle in which appellant was a passenger after
     he smelled marijuana but before searching appellant; A.R.Cr.P.
     Rule 14.1 explicitly conditions a search of the occupants of
     a vehicle in which an officer believes things subject to
     seizure may be found on a prior search of the vehicle; the
     vehicular search must not produce the things that the officer
     reasonably believes are subject to seizure and which are of
     the size and nature that the officer has reason to suspect
     that one or more of the occupants of the vehicle may have
     concealed on his or her person.

4.   Criminal procedure -- no evidence indicating how officer
     formed reasonable suspicion that appellant concealed
     contraband -- "reasonable suspicion" defined. -- There was no
     evidence indicating how the officer formed a reasonable
     suspicion that appellant, in particular, had concealed any
     contraband, given that the officer detected the marijuana odor
     as he approached the driverþs side of the vehicle, whereas
     appellant was seated in the rear, and on the opposite side;
     A.R.Cr.P. Rule 2.1 defines þreasonable suspicionþ as suspicion
     based on facts or circumstances that of themselves do not give
     rise to the probable cause requisite to justify a lawful
     arrest but that give rise to more than a bare suspicion, that
     is, a suspicion that is reasonable as opposed to an imaginary
     or purely conjectural suspicion.

5.   Criminal procedure -- "probable cause" defined. -- Probable
     cause for an arrest means a reasonable ground of suspicion
     supported by circumstances, sufficiently strong in themselves
     and existing at the time the arrest is made, that justify a
     cautious and prudent police officer in believing that the
     accused committed a felony, although this does not require the
     quantum of proof necessary to support a conviction.

6.   Criminal procedure -- warrantless arrest discussed -- no
     evidence that officer saw appellant commit any violation of
     law. -- Rule 4.1 of the Arkansas Rules of Criminal Procedure
     provides that a law enforcement officer may arrest a person
     without a warrant if the officer has reasonable cause to
     believe that the person arrested has committed a felony, a
     traffic offense involving either death or physical injury to
     a person, damage to property, or driving while under the
     influence of any intoxicating liquor or drug, as well as any
     violation of law in the officerþs presence; there was no
     evidence before the appellate court showing that the officer
     saw appellant commit any violation of the law or any offense
     covered by Rule 4.1.

7.   Search & seizure -- incidental to arrest -- permissible
     purposes. -- Rule 12.1 of the Arkansas Rules of Criminal
     Procedure provides that an officer making a lawful arrest may
     conduct a warrantless search of the person or property of the
     accused for only four purposes: (1) to protect the officer,
     the accused, or others; (2) to prevent the accused from
     escaping; (3) to furnish appropriate custodial care if the
     accused is jailed; or (4) to obtain evidence of the commission
     of the offense for which the accused has been arrested or to
     seize contraband, the fruits of crime, or other things
     criminally possessed or used in conjunction with the offense;
     if the officer lacked probable cause for arresting appellant,
     he manifestly lacked a reasonable basis for searching him;
     nothing resembling probable cause existed until the officer
     searched appellantþs pocket and found the marijuana; the
     officer admitted that he searched appellant and the other
     occupants of the vehicle because he had smelled marijuana; it
     is axiomatic that an incident search may not precede an arrest
     and serve as part of its justification. 

8.   Search & seizure -- evidence seized is obtained illegally
     absent valid arrest and probable cause to make warrantless
     search. -- To justify the intrusion into personal privacy
     caused when agents of the government handle persons and their
     effects, the government agent must be able to point to
     specific and articulable facts which, taken together with
     rational inferences from those facts, reasonably warrant that
     intrusion; the requisite cause justifying an arrest is not the
     same as that proof necessary to support a conviction; however,
     absent a valid arrest and probable cause to make a warrantless
     search, evidence seized as the result of the warrantless
     search of the defendantþs person is obtained illegally.  

9.   Motions -- motion to suppress -- evidence seized because of
     illegal search should have been suppressed. -- Because there
     was no probable cause for arresting appellant and searching
     him, the evidence seized because of the illegal search should
     have been suppressed pursuant to his motion.

10.  Motions -- motion to suppress -- trial court's denial was
     clearly erroneous -- reversed and remanded. -- Based upon its
     independent determination of the totality of the circumstances
     surrounding appellantþs search and arrest, and after viewing
     the evidence in the light favorable to the State as required
     by its standard of review, the appellate court concluded that
     the officer lacked probable cause for arresting appellant and
     conducting a warrantless search of his person; hence, the
     search was prohibited by the Fourth Amendment, the evidence
     seized thereby was obtained illegally, and the trial courtþs
     denial of appellantþs motion to suppress the evidence obtained
     in the illegal search was clearly erroneous; the matter was
     reversed and remanded.


     Appeal from Pulaski Circuit Court, Fourth Division; John
Langston, Judge; reversed and remanded.
     William R. Simpson, Jr., Public Defender, by:  Kent C. Krause,
Deputy Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Wendell L. Griffen, Judge.*ADVREP*CA9*                 EN BANC





                                   CACR 95-628

                                                 June 26, 1996


ALTON LEVERN BRUNSON               AN APPEAL FROM PULASKI
                APPELLANT          CIRCUIT COURT
                                   FOURTH DIVISION
                                   NO. 94-2443

V.                                 HON. JOHN LANGSTON, JUDGE

STATE OF ARKANSAS                         
                APPELLEE           REVERSED AND REMANDED





                   Wendell L. Griffen, Judge.

     Alton Levern Brunson has appealed his conviction after a bench
trial in the Pulaski County Circuit Court on the charges of
misdemeanor possession of a controlled substance (marijuana) and
felony possession of a controlled substance (cocaine).  Appellant
argues that the police officer who searched his person without a
warrant lacked probable cause to believe that he had committed a
felony, thereby making his arrest and search unlawful, and
appellant contends that the trial court erred by denying his motion
to suppress the evidence obtained from the search.  We hold that
appellantþs motion to suppress should have been granted because the
warrantless search lacked probable cause, thereby making the fruit
of the search illegal under the Fourth Amendment to the
Constitution of the United States.  Therefore, we reverse the conviction.
     Appellant was one of four people riding in a car around 1:30
a.m. on March 19, 1994, in North Little Rock when Officer John
Breckton of the North Little Rock Police Department stopped the car
because it was playing music too loudly in violation of a city
noise ordinance.  Officer Breckton testified that as he approached
the driverþs side of the car, he smelled the odor of marijuana, so
he ordered the occupants from the car.  Appellant was seated in the
rear seat on the passenger side, and exited the car as ordered. 
Officer Breckton then performed a pat-down search of the occupants,
including appellant, in a search for drugs.  Based upon the items
found during the search, appellant was charged.  He moved to
suppress the evidence seized during the search of his person on the
ground that the search was unlawful.  The trial court denied the
motion to suppress, and found him guilty.  The misdemeanor sentence
was merged with the felony, and appellant was fined $250, placed on
probation for five years, and ordered to pay court costs.
     In reviewing the denial of a motion to suppress evidence, the
appellate court makes an independent determination based on the
totality of the circumstances and reverses the decision only if the
trial courtþs ruling was clearly against the preponderance of the
evidence or was clearly erroneous.  Mounts v. State, 48 Ark. App.
1, 888 S.W.2d 321 (1994); Houston v. State, 41 Ark. App. 67, 848 S.W.2d 430 (1993).  We have reviewed the evidence in light of this
standard, and conclude that the trial courtþs denial of appellantþs
motion to suppress was clearly erroneous, thereby compelling
reversal.
     The Fourth Amendment to the Constitution of the United States
protects persons from unreasonable searches and seizures.  This
constitutional guarantee means that appellantþs motion to suppress
requires analysis of several factors: (1) whether he was searched
based upon a warrant; (2) if not, whether the warrantless search
was based upon probable cause; and (3) if that was not the case,
whether the warrantless search was incidental to a contemporaneous
lawful arrest.  None of these factors apply to this case.  Instead,
the State argues that the motion to suppress was properly denied
because appellant was bodily searched incidental to a vehicular
search for contraband that the officer reasonably believed might
have been contained in the vehicle in which he was a passenger
pursuant to Rule 14.1 of the Arkansas Rules of Criminal Procedure. 
Rule 14.1 applies to vehicular searches, and states, in pertinent
part:
     (a) 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: (i) on a public way or waters or
other area open to the public; . . .

     (b) If the officer does not find the things subject
to seizure by his search of the vehicle, and if: (i) the
things subject to seizure are of such a size and nature
that they could be concealed on the person; and (ii) the
officer has reason to suspect that one (1) or more of the
occupants of the vehicle may have the things subject to
seizure so concealed; the officer may search the
suspected occupants....

     The evidence does not support the Stateþs reliance upon Rule
14.1 and the cases that have applied it.  There is no proof that
Officer Breckton searched the vehicle after he smelled marijuana
but before searching appellant.  Rule 14.1 explicitly conditions a
search of the occupants of a vehicle in which an officer believes
things subject to seizure may be found on a prior search of the
vehicle.  The vehicular search must not produce the things that the
officer reasonably believes are subject to seizure and which are of
the size and nature that the officer has reason to suspect that one
or more of the occupants of the vehicle may have concealed on his
or her person.
     The State cannot rely upon Rule 14.1(b) to justify the search
of appellantþs person where the clear proof shows that Officer
Breckton made no effort to search the vehicle for the marijuana
that he believed that he smelled.  To rule otherwise would render
the introductory clause of Rule 14.1(b) a nullity, and would
essentially license officers to perform warrantless searches of
persons traveling the streets and highways of Arkansas even where
the officers lacked probable cause to believe that those persons
were guilty of anything more than riding in a vehicle.  Indeed, if
Officer Breckton did smell the odor of marijuana as he approached
the vehicle on the driverþs side, it is at least odd that he
conducted no search for marijuana in the vehicle before searching
its occupants, or afterwards as far as can be determined from the
record.
     There is no evidence indicating how the officer formed a
reasonable suspicion that appellant, in particular, had concealed
any contraband given that the officer detected the marijuana odor
as he approached the driverþs side of the vehicle whereas appellant
was seated in the rear, and on the opposite side.  Rule 2.1 of the
Arkansas Rules of Criminal Procedure defines þreasonable suspicionþ
as 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.  Reasonable suspicion for detaining  persons
under Rule 3.1 of the Rules of Criminal Procedure and conducting 
weapons searches under Rule 3.4 (the stop and frisk situation not
involved in this case) is different from probable cause for an
arrest or for a warrantless search.  Probable cause for an arrest
means a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves and existing at the time the
arrest is made which justify a cautious and prudent police officer
in believing that the accused committed a felony, although this
does not require the quantum of proof necessary to support a
conviction.  Reed v. State, 9 Ark. App. 164, 656 S.W.2d 249 (1983). 
Accepting the assertion that Officer Breckton smelled marijuana as
he approached the driverþs side of the vehicle and, therefore, had
reasonable cause to conduct a warrantless search of the vehicle
does not authorize us to ignore the plain language of Rule 14.1
requiring that the officer first search the vehicle and fail to
find the things believed subject to seizure before proceeding to
search the occupants.
     Although the dissenting members of our panel would uphold the
trial courtþs denial of appellantþs motion to suppress by viewing
the search as one incidental to a contemporaneous arrest, we do not
share their reasoning.  It is true that pursuant to Rule 3.1 of the
Arkansas Rules of Criminal Procedure, a law enforcement officer
lawfully present in any place may, in the performance of his or her
duties, conduct what is known as an investigatory stop and briefly
detain any person reasonably suspected of committing, having
committed, or about to commit (1) a felony, or (2) a misdemeanor
involving danger of forcible injury to persons or appropriation of
or damage to property, if stopping and detaining that person is
reasonably necessary to either obtain or verify the identification
of the person or to determine the lawfulness of his or her conduct. 
Moreover, when a law enforcement officer who has detained a person
in connection with an investigatory stop reasonably suspects that
the person is armed and presently dangerous to the officer or
others, the officer or a designee may search the outer clothing of
the person detained and seize any weapon or other dangerous thing
which may be used against the officer or others.  Ark. R. Crim. P.,
Rule 3.4.  Neither of these situations existed in this case.
     Rule 4.1 of the Arkansas Rules of Criminal Procedure provides
that a law enforcement officer may arrest a person without a
warrant if the officer has reasonable cause to believe that the
person arrested has committed a felony, a traffic offense involving
either death or physical injury to a person, damage to property, or
driving while under the influence of any intoxicating liquor or
drug, as well as any violation of law in the officerþs presence. 
There is no evidence before us showing that Officer Breckton saw
appellant commit any violation of the law, not to mention an
offense covered by that rule.    
     We have also reviewed Rule 12.1 of the Rules of Criminal
Procedure to determine whether the search in this case can be
upheld as incidental to appellantþs arrest.  That rule provides
that an officer making a lawful arrest may conduct a warrantless
search of the person or property of the accused for only four
purposes: (1) to protect the officer, the accused, or others; (2)
to prevent the accused from escaping; (3) to furnish appropriate
custodial care if the accused is jailed; or (4) to obtain evidence
of the commission of the offense for which the accused has been
arrested or to seize contraband, the fruits of crime, or other
things criminally possessed or used in conjunction with the
offense. But if Officer Breckton lacked probable cause for
arresting appellant, he manifestly lacked a reasonable basis for
searching him.  Nothing resembling probable cause existed until the
officer searched appellantþs pocket and found the marijuana.  The
officer admitted that he searched appellant and the other occupants
of the vehicle because he had smelled marijuana.  As the United
States Supreme Court emphasized in Sibron v. New York, 392 U.S. 40
(1968), it is axiomatic that an incident search may not precede an
arrest and serve as part of its justification.  
     Officer Breckton had observed nothing about appellantþs
behavior or appearance before performing the search that created a
reasonable basis for suspecting that appellant had done anything
deserving arrest, let alone concealed contraband on his person. 
This factor distinguishes this case from those where evidence was
seized after a search prompted by the officer who saw the defendant
attempt to conceal suspicious material after the officer had
detected the odor of marijuana.  Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992).  He did not perform the pat-down search of
appellant based upon a reasonable concern that appellant was armed
as was done in Jackson v. State, 34 Ark. App. 4, 804 S.W.2d 735
(1991).  Appellant had committed no crime in the officerþs
presence.  Assuming that the officer smelled the odor of marijuana
smoke, possession of marijuana would have been a misdemeanor, so
the search cannot be sustained as one incidental to arresting
appellant for a felony.  The crack cocaine was not found until
after appellant had already been arrested for misdemeanor
possession of marijuana, having been searched without probable
cause for believing that he had committed any crime.  Based on the
facts known to Officer Breckton before appellant was searched,
appellant should not have been searched because there was nothing
beyond a naked hunch for believing that he had committed a crime or
that he possessed contraband. 
     In order to justify the intrusion into personal privacy caused
when agents of the government handle persons and their effects, the
government agent must be able to point to specific and articulable
facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.  Terry v. Ohio, 392 U.S. 1 (1968).  The requisite cause justifying an arrest is not the same
as that proof necessary to support a conviction.  Burks v. State,
293 Ark. 374, 738 S.W.2d 399 (1987).  However, it is well settled
that absent a valid arrest and probable cause to make a warrantless
search, evidence seized as the result of the warrantless search of
the defendantþs person is obtained illegally.  United States v. Di
Re, 332 U.S. 581 (1948).  If persons can be arrested and searched
without a warrant and without probable cause, then the Fourth
Amendment rings hollow indeed when it guarantees persons the right
to be secure in their persons against unreasonable searches and
seizures.  Riding in a car that is playing loud music is not a
crime, let alone a felony, even if the car smells like marijuana. 
Persons riding vehicles on the streets, roads, and highways of this
state have a reasonable expectation that they will not be forced to
submit to invasion of their privacy merely because the police are
zealous to combat the evil of illegal drugs.   
     Because there was no probable cause for arresting appellant
and searching him, it follows that the evidence seized because of
the illegal search should have been suppressed pursuant to his
motion.  Since the decision by the United States Supreme Court in
Mapp v. Ohio, 367 U.S. 643 (1961), the sanction for illegal
searches has been to exclude illegally obtained evidence in state
criminal cases.  The exclusion of evidence obtained due to illegal
searches in this nation dates back to 1914 when the United States
Supreme Court made the following statement in Weeks v. United
States, 232 U.S. 383 (1914):
     If letters and private documents can thus be seized
and held and used in evidence against a citizen accused
of an offense, the protection of the Fourth Amendment
declaring his right to be secure against such searches
and seizures is of no value, and, so far as those thus
placed are concerned, might as well be stricken from the
Constitution.  The efforts of the courts and their
officials to bring the guilty to punishment, praiseworthy
as they are, are not to be aided by the sacrifice of
those great principles established by years of endeavor
and suffering which have resulted in their embodiment in
the fundamental law of the land.  

Id. 232 U.S.  at 393.  Justice Clark, in writing for the majority in
Mapp v. Ohio, stated:  "The criminal goes free if he must, but it
is the law that sets him free.  Nothing can destroy a government
more quickly than its failure to observe its own laws, or worse,
its disregard of the charter of its own existence."  367 U.S. 659,
(quoting Olmstead v. United States, 277 U.S. 438 (1928)).  As
Justice Brandeis, dissenting, said in Olmstead:  
Our Government is the potent, the omnipresent teacher. 
For good or for ill, it teaches the whole people by its
example. . . .  If the Government becomes a lawbreaker,
it breeds contempt for the law; it invites every man to
become a law unto himself; it invites anarchy. 

     Based upon our independent determination of the totality of
the circumstances surrounding appellantþs search and arrest, and
after viewing the evidence in the light favorable to the State as
required by our standard of review, we conclude that Officer
Breckton lacked probable cause for arresting appellant and
conducting a warrantless search of his person.  Hence, the search
was prohibited by the Fourth Amendment, the evidence seized thereby
was obtained illegally, and the trial courtþs denial of appellantþs
motion to suppress the evidence obtained in the illegal search was
clearly erroneous.  
     Reversed and remanded.
     Cooper, Robbins, and Mayfield, JJ., agree.
     Jennings, C.J., and Rogers, J., dissent.
*ADVREP*CA9-A*                  EN BANC




                                       CACR 95-628
                                        
                                                   June 26, 1996       
                                          

ALTON LEVERN BRUNSON                 AN APPEAL FROM THE CIRCUIT
                 APPELLANT           COURT OF PULASKI COUNTY,         
                                     NO. 94-2443                 
VS.
                                     HONORABLE JOHN LANGSTON,    
STATE OF ARKANSAS                    CIRCUIT JUDGE
                 APPELLEE
                                     DISSENTING OPINION






                         Judith Rogers, Judge.
     
     I cannot disagree with the majority's conclusion that the
search of appellant's person cannot be justified under Ark. R.
Crim. P. 3.4, because the officer candidly stated in his testimony
that he was not conducting a protective search for weapons.  Nor do
I disagree with the majority's holding that the search cannot be
upheld under Ark. R. Crim. P. 14.1(b), for the simple reason that
the officer did not search the vehicle prior to the search of
appellant's person as is contemplated by that rule.  However, I
cannot agree with the majority's decision that the odor of
marijuana did not provide sufficient reasonable cause to authorize
the arrest of appellant.  Therefore, I dissent. 
     Rule 4.1(a)(iii) of the Arkansas Rules of Criminal Procedure
provides that a law enforcement officer may arrest a person without
a warrant if the officer has reasonable cause to believe that such
person has committed any violation of the law in the officer's
presence.  Reasonable, or probable, cause for a warrantless arrest
exists when the facts and circumstances within an officer's
knowledge are sufficient to permit a person of reasonable caution
to believe that an offense has been committed or is being committed
by the person arrested.  Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994); Mock v. State, 20 Ark. App. 72, 723 S.W.2d 844 (1987). 
Probable cause to arrest does not require the degree of proof
sufficient to sustain a conviction.  Hudson v. State, supra.  Our
courts have committed themselves to the reasonable, common-sense
approach to these determinations and arrests are to be appraised
from the viewpoint of prudent and cautious police officers at the
time the arrest is made.  Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986).  Furthermore, Rule 4.1(c) provides that an
arrest shall not be deemed to have been made on insufficient cause
solely on the ground that the officer is unable to determine the
particular offense which may have been committed.
     Rule 12.1(d) provides that an officer who is making a lawful
arrest may, without a search warrant, conduct a search of the
person or property of the accused to obtain evidence of the
commission of the offense for which the accused has been arrested
or to seize contraband, the fruits of the crime, or other things
criminally possessed or used in conjunction with the offense.  A
search is valid as incident to a lawful arrest even if it is
conducted before the actual arrest, provided that the arrest and
search are substantially contemporaneous and there was probable
cause to arrest prior to the search.  Johnson v. State, 21 Ark.
App. 211, 730 S.W.2d 517 (1987).  Warrantless arrests are presump-
tively legal, Freeman v. State, 6 Ark.  App. 240, 640 S.W.2d 456
(1982), and in arrest cases, all presumptions on appeal are
favorable to the trial court's ruling and the burden of establish-
ing error rests on the appellant.  Gaylor v. State, 284 Ark. 215,
681 S.W.2d 348 (1984).
     The search in this instance was substantially contemporaneous
with appellant's arrest.  Therefore, the issue in this case is
whether the odor of marijuana gave the officer reasonable cause to
believe that appellant was committing a crime in his presence.  The
trial court so concluded, and in reviewing a trial court's decision
to deny an appellant's motion to suppress evidence, this court
makes an independent determination based on the totality of the
circumstances and reverses only if it is clearly against the
preponderance of the evidence.  Bonebrake v. State, 51 Ark. App.
81, 915 S.W.2d 723 (1995).  
     The Supreme Court in Johnson v. United States, 333 U.S. 10
(1948), observed that probable cause can be established by a police
officer relying on his sense of smell.  The Court rejected the
defendant's contention:
... that odors cannot be evidence sufficient
to constitute probable cause grounds for any
search. ... If the presence of odors is testi-
fied to before a magistrate and he finds the
affiant qualified to know the odor, and it is
one sufficiently distinctive to identify a
forbidden substance, this Court has never held
such a basis insufficient to justify issuance
of a search warrant.  Indeed it might very
well be found to be evidence of the most
persuasive character.
Id. at 13.  Although the Johnson court was speaking in terms of
probable cause sufficient to justify the issuance of a search
warrant, its reasoning is not wholly inapposite here.  While the
two represent distinct concepts, our supreme court has recognized
that the same standards govern reasonable cause or probable cause
determinations, whether the question concerns the validity of an
arrest or the validity of a search and seizure.  Hudson v. State,
supra.   
     Although completely ignored by the majority, there is a body
of law pertaining to probable cause determinations based on the
odor of marijuana.  A review of these decisions reveals that there
is some controversy as to whether or not the odor of burned
marijuana, standing alone, supplies sufficient probable cause for
a search of an automobile or for the arrest of its occupants. 
However, there appears to be less debate when the odor of unburned
marijuana is at issue.  In People v. Hilber, 269 N.W.2d 159 (Mich.
1978), the Supreme Court of Michigan found a distinction between
the two types of odors and the inferences to be drawn from their
detection.  The court observed that the odor of unburned marijuana
indicated the actual presence of marijuana and thus would support
a finding of probable cause. In a plurality decision, however, the
court struck down the search of a vehicle based solely upon the
smell of burned marijuana, reasoning that such an odor was only
indicative of the presence of marijuana some time in the past.  
     Yet, a different result was reached in State v. Reuben 612 P.2d 1071 (Ariz. Ct. App. 1980), where it was held that the odor of
burned marijuana provided probable cause for the search of a
vehicle.  The court so held in reliance on a previous decision of
its own supreme court in State v. Decker, 580 P.2d 333 (Ariz.
1978), where it was said:
   Even if the smell of burned marijuana has a
lingering effect, as is urged, we think that a
man of reasonable prudence, upon smelling the
odor of burned marijuana, would believe that
marijuana is present.
Id. at 335-36.  
     In State v. Judge, 645 A.2d 1224 (N.J. Super. Ct. App. Div.
1994), it was determined that the odor of burnt marijuana in a
vehicle satisfied the requirement of probable cause for an arrest. 
There, the court rejected the distinction recognized in People v.
Hilber, supra, and held that the odor of burned marijuana creates
the inference that marijuana is physically present in the vehicle,
and on the persons occupying the vehicle.
     Likewise, in State v. Hammond, 603 P.2d 377 (Wash. Ct. App.
1979), it was held that probable cause existed to arrest an
occupant of an automobile based on the odor of burned marijuana
emanating from the vehicle.  The court observed that:
   An officer is entitled to rely on his
senses in determining whether contraband is
present in a vehicle.  If the contraband is
seen or smelled, the officer is not required
to close his eyes or nostrils, walk away, and
leave the contraband where he sees or smells
it.
Id. at 378 (quoting State v. Romonto, 212 N.W.2d 641, 644 (Neb.
1973)).  In concluding that the aroma of burned marijuana estab-
lished probable cause for the arrest of a vehicle's occupants, the
Hammond court was also persuaded by the decision in Dixon v. State,
343 So. 2d 1345 (Fla. Dist. Ct. App. 1977).  There it was held that
the odor of burned marijuana and smoke emanating from a vehicle
constituted probable cause to believe that each occupant of the car
may have had actual or constructive possession of marijuana, thus
justifying the arrest of the vehicle's occupants.
     The officer in this case testified that he smelled the odor of
marijuana coming from the vehicle.  It was 1:00 a.m., and the
officer had just legitimately stopped the vehicle for playing loud
music in violation of a city ordinance prohibiting raucous noise. 
Under the totality of the circumstances and under a practical and
common-sense approach, and with due consideration of the opinions
from other courts, I conclude that the officer was justified in
making an arrest.  The odor of marijuana arouses more than a "naked
hunch" that criminal activity is afoot.  As is shown here, to a
trained police officer the odor of marijuana emanating from the
closed environment of an automobile gives rise to the reasonable
inference that marijuana is present in the vehicle.  And, operating
under that rational inference, it is also logical to believe that
any one of the passengers is in possession of the prohibited
substance.  Of course, possession of marijuana is unlawful.  Ark.
Code Ann.  5-64-401 (Supp. 1995).  It should not be said then that
the officer did not have reasonable cause to believe that a
violation of our law was being committed in his presence.  It was
simply not necessary for the officer to be certain beyond a
reasonable doubt.  Nor is it reasonable or realistic to expect an
officer to be able to pinpoint the offender with the accuracy of a
dog trained in the detection of narcotics.  All that is required
under the law is a reasonable belief as viewed from the standpoint
of a prudent police officer.  I cannot say that the evidence in
this case does not satisfy that test; therefore, I would sustain
the trial court's denial of the motion to suppress.        
     Jennings, C.J., joins in this dissent.