Roberson v. State

Tina D. ROBERSON v. STATE of Arkansas

CA CR 95-714                                       ___ S.W.2d ___

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


1.   Criminal procedure -- reasonable suspicion needed for
     investigatory stop -- reasonable suspicion defined. -- 
     "Reasonable suspicion" means that suspicion based on facts and
     circumstances which, in and of themselves, may not constitute
     probable cause to justify a warrantless arrest, but which give
     rise to a suspicion that is reasonable as opposed to imaginary
     or conjectural; the justification for an investigatory stop
     depends on whether under the totality of the circumstances the
     police have a particularized, specific, and articulable reason
     indicating that the person or vehicle may be involved in
     criminal activity.

2.   Criminal procedure -- level of information necessary for legal
     investigatory stop -- officer need not know that a crime has
     been committed. -- It has never been a requirement that
     someone know that a crime had been committed before an officer
     can conduct an investigatory stop; the Fourth Amendment does
     not require a policeman who lacks the precise level of
     information necessary for probable cause to arrest to simply
     shrug his shoulders and allow a crime to occur or a criminal
     to escape; on the contrary a brief stop of a suspicious
     individual, in order to determine his identity or to maintain
     the status quo momentarily while obtaining more information,
     may be more reasonable in light of the facts known to the
     officer at the time.

3.   Criminal procedure -- investigatory stop -- restraining police
     action until after probable cause is obtained a hinderance to
     investigation. -- Restraining police action until after
     probable cause is obtained would not only hinder the
     investigation, but might also enable the suspect to flee in
     the interim and to remain at large; particularly in the
     context of felonies or crimes involving a threat to public
     safety, it is in the public interest that the crime be solved
     and the suspect detained as promptly as possible. 

4.   Criminal procedure -- investigatory stop proper -- trial
     court's denial of appellant's motion to suppress not clearly
     against preponderance of evidence. -- Where the officer not
     only had the information from the dispatch but he also had
     personal knowledge that the local pawn shops had given
     reliable information in the past that was used by the police,
     and he confirmed the vehicle description, license number and
     identification of the occupants of the truck, and he also
     observed a ring box on the front seat of the individuals'
     vehicle before questioning the suspects, the appellate court
     could not say that the trial court's denial of appellant's
     motion to suppress was clearly against the preponderance of
     the evidence. 


     Appeal from Garland Circuit Court; Walter G. Wright, Judge;
affirmed.
     Daniel D. Becker, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Judith Rogers, Judge.
*ADVREP*CA8*                          EN BANC




                                       CACR95-714
                                        
                                                     June 26, 1996     



TINA D. ROBERSON                     AN APPEAL FROM GARLAND COUNTY
                 APPELLANT           CIRCUIT COURT                  
                                     NO. CR-94-387                    
V.
                                     HONORABLE WALTER G. WRIGHT,
STATE OF ARKANSAS                    CIRCUIT JUDGE 
                 APPELLEE
                                     AFFIRMED






                         Judith Rogers, Judge.


     Appellant, Tina Roberson, was convicted by a jury of posses-
sion of a controlled substance with intent to deliver and sentenced
to twenty-three years in the Arkansas Department of Correction. 
Prior to trial, appellant filed a motion to suppress the fruits of
an alleged illegal search and her subsequent statement.  The trial
court denied the motion, and it is from that denial that appellant
appeals.  We affirm.
     The record reveals that a Hot Springs officer received a radio
broadcast advising the officer to be on the look out for a yellow
Datsun pick-up truck with a certain license plate number, occupied
by a white male and black female.  The officer was informed that
the occupants were suspected of selling stolen jewelry.  Lieutenant
Bond observed the suspect vehicle and made an investigatory stop. 
Lieutenant Bond observed a ring box on the front seat of the
vehicle.  He was questioning the occupants when a back-up officer
arrived.  The back-up officer conducted a weapons search of
appellant and located controlled substances and drug paraphernalia. 
Appellant was arrested and gave a statement to local Drug Task
Force agents.
     On appeal, appellant argues that Lieutenant Bond lacked 
sufficient probable cause or reasonable suspicion to make an
investigatory stop of the vehicle in which she was a passenger. 
Appellant specifically contends that Lieutenant Bond could not have
had more than a bare suspicion that the occupants of the vehicle
were involved in any criminal activity, either a felony or a
misdemeanor.
     Rule 3.1 of the Arkansas Rules of Criminal Procedure permits
a police officer to stop and detain any person that he reasonably
suspects has committed or is about to commit a felony or a
misdemeanor involving danger of forcible injury to persons or
property, where it is reasonably necessary to obtain or verify the
identification of the party or to determine the lawfulness of his
conduct.  "Reasonable suspicion" means that suspicion based on
facts and circumstances which, in and of themselves, may not
constitute probable cause to justify a warrantless arrest, but
which give rise to a suspicion that is reasonable as opposed to
imaginary or conjectural.  Ark. R. Crim. P. 2.1; Folly v. State, 28
Ark. App. 98, 771 S.W.2d 306 (1989).  The justification for an
investigatory stop depends on whether under the totality of the
circumstances the police have a particularized, specific, and
articulable reason indicating that the person or vehicle may be
involved in criminal activity.  Nottingham v. State, 29 Ark. App.
95, 778 S.W.2d 629 (1989).
     In the Nottingham case, an officer received a phone call from
the owner of a local Travel Mart alerting him of a possible DWI
suspect in a red Ford pickup.  The officer proceeded to the area
and approached the suspect's vehicle and found him asleep in the
truck with a beer can.  We found that the information provided by
the owner acted as a catalyst for the officer to investigate which
the officer had a duty to perform.  Thus, we concluded that the
officer's actions were justified based upon reasonable suspicion
pursuant to Ark. R. Crim. P. 3.1.  Also, in the case of Leopold v.
State, 15 Ark. App. 292, 692 S.W.2d 780 (1985), we found that an
officer had a reasonable suspicion to make an investigatory stop
when he spotted appellants' truck at 2:00 a.m. traveling at ten
miles an hour down a gravel road owned by International Paper but
open to the public.  The officer suspected that appellants could
possibly have been headlighting or spotlighting for deer.
     The facts presented to the trial court in this case, with all
presumptions favorable to the trial court's ruling, Johnson v.
State, 319 Ark. 78, 889 S.W.2d 764 (1994), are these:  the owner of
Monty's Pawn Shop reported that a white male and black female had
tried to pawn some jewelry which appeared to be stolen.  A radio
dispatch was sent to officers alerting them to "be on the look out
for" a yellow Datsun pickup occupied by a white male and black
female who had been attempting to sell possibly stolen jewelry. 
The dispatch described the vehicle, the occupants, and provided the
license number of the vehicle. 
     Lieutenant Bond testified that he received the radio dispatch
and subsequently spotted the vehicle matching the description.  He
testified that he stopped the vehicle because it was his under-
standing that "they had been down to Monty's Pawn Shop and tried to
sell some jewelry that appeared to have been stolen."  When asked
what gave rise to his suspicion that the individuals were doing
something wrong, Lieutenant Bond responded "[w]ell, after thirteen
years with the Detective Bureau, we'd dealt with pawn shops quite
a bit.  They, any time they have someone who comes in there with an
obviously expensive piece of jewelry who don't, obviously don't
appear to be people who would have this type of jewelry normally,
or a large quantity of jewelry and so forth creates, anything of a
suspicious nature, they usually give us a call or some of them do." 
Lieutenant Bond indicated that the pawn shops in the area had
provided information in the past of illegal activity being
attempted in their stores.  Lieutenant Bond testified that after
stopping the truck, he approached the vehicle and noticed a ring
box on the front seat.  Lieutenant Bond said that he then ques-
tioned the occupants of the vehicle.
     Appellant argues that the person reporting to the police did
not see a crime committed or have knowledge that a crime was being
committed.  Also, appellant asserts that there was no independent
corroboration of the radio dispatch that the occupants of the
vehicle were involved in any criminal activity.  In arguing that
the stop was unreasonable, appellant places great emphasis on the
proposition that no one knew that a crime had been committed. 
However, the Supreme Court noted in U.S. v. Hensley, 469 U.S. 221
(1985), that "although the officer who issues a wanted bulletin
must have a reasonable suspicion sufficient to justify a stop, the
officer who acts in reliance on the bulletin is not required to
have personal knowledge of the evidence creating a reasonable
suspicion."  Id. at 231.  Quoting from the Ninth Circuit, the
Supreme Court further expressed "that effective law enforcement
cannot be conducted unless police officers can act on directions
and information transmitted by one officer to another and that
officers, who must often act swiftly, cannot be expected to cross-
examine their fellow officers about the foundation for the
transmitted information."  Id. at 231.  Also, in the cases of Terry
v. Ohio, 392 U.S. 1 (1968); Nottingham, supra; and Leopold v.
State, 15 Ark. App. 292, 692 S.W.2d 780 (1985), no one knew that a
crime had been committed.  Therefore, it is clear that it has never
been a requirement that someone know that a crime had been
committed before an officer can conduct an investigatory stop.  As
the Supreme Court noted in Adams v. Williams, 407 U.S. 143 (1972):
               The Fourth Amendment does not require a
          policeman who lacks the precise level of
          information necessary for probable cause to
          arrest to simply shrug his shoulders and allow
          a crime to occur or a criminal to escape.  On
          the contrary, Terry recognizes that it may be
          the essence of good police work to adopt an
          intermediate response.  A brief stop of a
          suspicious individual, in order to determine
          his identity or to maintain the status quo
          momentarily while obtaining more information,
          may be more reasonable in light of the facts
          known to the officer at the time.

As noted in Terry v. Ohio, 392 U.S. 1 (1968), one general interest
present in the context of ongoing or imminent criminal activity is
"that of effective crime prevention and detection."  In this case,
it would have been impossible for the police to determine if the
jewelry was stolen before appellant was stopped because the jewelry
was in the possession of the suspected individuals.  "Restraining
police action until after probable cause is obtained would not only
hinder the investigation, but might also enable the suspect to flee
in the interim and to remain at large.  Particularly in the context
of felonies or crimes involving a threat to public safety, it is in
the public interest that the crime be solved and the suspect
detained as promptly as possible."  U.S. v. Hensley, 469 U.S. 221,
229 (1985).    
     Here, Lieutenant Bond not only had the information from the
dispatch but he also had personal knowledge that the local pawn
shops had given reliable information in the past that was used by
the police, and he confirmed the vehicle description, license
number and identification of the occupants of the truck.  Lieuten-
ant Bond also observed a ring box on the front seat of the
individuals' vehicle before questioning the suspects.  Based on the
totality of the circumstances in this case, we cannot say that the
trial court's denial of appellant's motion to suppress was clearly
against the preponderance of the evidence.  See Bliss v. State, 33
Ark. App. 121, 802 S.W.2d 479 (1991).
     Affirmed.
     Cooper, Stroud, and Mayfield, JJ., agree.
     Jennings, C.J., and Griffen, J., dissent.*ADVREP*CA8-A*               EN BANC





                                   CACR 95-714

                                                June 26, 1996


TINA D. ROBERSON                   AN APPEAL FROM GARLAND COUNTY  
               APPELLANT           CIRCUIT COURT


V.                                 HON. WALTER G. WRIGHT, JUDGE


STATE OF ARKANSAS                         
               APPELLEE            DISSENTING OPINION







It is a capital mistake to theorise before one has data. 
Insensibly one begins to twist facts to suit theories,
instead of theories to suit facts.
                      -- Sherlock Holmes to Dr. Watson,
                             from A Scandal in Bohemia,
                              by Sir Arthur Conan Doyle

There is nothing more frightful than an active ignorance.
                          -- Johann Wolfgang von Goethe

     Despite the plain requirement that the police have a reason-
able suspicion that a person is committing, has committed, or is
about to commit a crime before making an investigatory stop, and
the equally clear principle that an investigatory stop is a seizure
within the Fourth Amendmentþs protection against unreasonable
seizures, today we uphold a stop based upon an unconfirmed report
from an unidentified informant that a black woman and a white man
were riding a yellow Toyota truck and trying to sell "possibly
stolen" jewelry at an unidentified pawn shop.  Because the record
contains no proof justifying a suspicion that appellant or anyone
else had committed, was committing, or was about to commit a crime,
I respectfully disagree with the result reached in this case and
write to challenge the reasoning beneath it. 
     Appellant made a timely and proper motion to suppress the
evidence obtained when she was searched after the stop as well as
her statement to the police.  She contended that there was neither
probable cause nor reasonable suspicion for stopping the vehicle in
which she was riding and detaining her.  Her motion was based upon
Rules 2.1 and 3.1 of the Arkansas Rules of Criminal Procedure and
a clear line of cases that holds that there must be specific,
particularized, and articulable reasons indicating that the person
or vehicle stopped may be involved in criminal activity in order to
justify an investigative stop.  Van Patten v. State, 16 Ark. App.
83, 697 S.W.2d 919 (1985).  Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982);  Hayes v. State, 269 Ark. 47, 598 S.W.2d 91 (1980). 
Her motion should have been granted.  Her conviction for possession
of a controlled substance with intent to deliver should be
reversed.  The charge against her should be dismissed.
     On July 21, 1994, Lieutenant Travis Bond of the Hot Springs
Police Department was on patrol duty in a marked police car when a
radio broadcast was issued directing officers to be on the look-out
for a yellow Toyota pickup truck occupied by a white male and black
female who had been attempting to sell some þpossibly stolen
jewelry.þ  Although Lieutenant Bond testified at the suppression
hearing that he understood that a white male and a black female had
been to Montyþs Pawn Shop in Hot Springs and that they had tried to
sell jewelry that appeared to have been stolen, he admitted that
the radio dispatch did not indicate that the source of the tip was
Montyþs Pawn Shop. The record does not contain the identity of the
source of the information that was in the radio dispatch.  No
testimony was presented from the dispatcher who broadcast the
alert.  Lieutenant Bondþs testimony did not specify what kind of
jewelry was involved, its description, or even that a report of
stolen jewelry had been received by the police, let alone a report
matching anything published in the radio dispatch.  He acknowledged
that it is customary for people to pawn or sell articles of
personal property such as jewelry, and that he could not look at an
item of jewelry and determine whether it appeared to be stolen. 
Bond gave no testimony about any behavior mentioned in the dispatch
to justify a suspicion that the persons attempting to sell the
jewelry had stolen it.  Nevertheless, he stopped a yellow Toyota
pickup truck with appellant (a black woman) as its passenger and
Lewis Petter (a white man) as its driver.
      After stopping the vehicle, Bond noticed a ring box on the
front seat of the vehicle; he spoke with Petter about the ring box
and the jewelry.  Officer Mark Rodenberry then arrived, and frisked
Petter and appellant for weapons.  During that search, he found a
small purse belonging to appellant.  A rock of cocaine was inside
the purse.   Appellant was then arrested.  Rodenberry testified at
the suppression hearing that, although he was at the stop site for
more than twenty minutes, he did not recover any jewelry.  The
record contains no proof that any jewelry had ever been stolen. 
None of the police officers who testified at the suppression
hearing witnessed a moving traffic violation or any other suspi-
cious activity by appellant, her associate, or the vehicle in which
she was a passenger before the stop occurred.  
     Our standard of review requires that we make an independent
determination, based on the totality of the circumstances, in
reaching our decision whether evidence obtained by means of a
warrantless seizure should be suppressed.  Under that standard, the
trial courtþs finding is not set aside unless it is found to be
clearly against the preponderance of the evidence.  State v.
Osborn, 263 Ark. 554, 556 S.W.2d 139 (1978).
     The Fourth Amendment to the Constitution of the United States
protects the right of people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures. 
Pursuant to the holding by the Supreme Court of the United States
in Terry v. Ohio, 392 U.S. 1 (1968), police may stop persons
without probable cause under limited circumstances.  Nevertheless,
it is clear that stopping a vehicle and detaining its occupants
constitutes a seizure within the meaning of the Fourth Amendment. 
See Delaware v. Prouse, 440 U.S. 648 (1979).  In Hill v. State, 275
Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982), the
Arkansas Supreme Court stated that the justification for an
investigative stop depends upon whether, under the totality of the
circumstances, the police have specific, particularized and
articulable reasons indicating that the person or vehicle may be
involved in criminal activity.  That standard is also codified at
Rule 3.1 of the Arkansas Rules of Criminal Procedure which states:
     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 commit-
ting, 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 deter-
mine the lawfulness of his conduct.

     Rule 2.1 of the Rules of Criminal Procedure contains the
definition of þreasonable suspicion,þ and states:
     þReasonable suspicionþ 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 suspi-
cion; that is, a suspicion that is reasonable as opposed
to an imaginary or purely conjectural suspicion.

In the comment to Rule 2.1, the following factors are listed for
determining whether a þreasonable suspicionþ exists: (1) The
conduct and demeanor of a person; (2) the gait and manner of a
person; (3) any knowledge the officer may have of a personþs
background or character; (4) whether a person is carrying anything,
and what he is carrying; (5) the manner of a personþs dress,
including bulges in his clothing, when considered in light of all
the other factors; (6) the time of the day or night; (7) any
overheard conversation of a person; (8) the particular streets and
areas involved; (9) any information received from a third person,
whether that person is known or unknown; (10) whether a person is
consorting with others whose conduct is þreasonably suspectþ;   
(11) a personþs proximity to known criminal conduct; (12) the
incidence of crime in the immediate neighborhood; (13) a personþs
apparent effort to conceal an article; and (14) the apparent effort
of a person to avoid identification or confrontation by the police. 
When these fourteen factors are applied to this case, it becomes
obvious that none of them are met and that there is no basis for
sustaining the trial courtþs finding that the police had a
reasonable suspicion for stopping the vehicle and then detaining
the appellant.
     The record contains no proof that appellantþs conduct and
demeanor was suspicious at any time before the stop took place. 
Although Lieutenant Bond and Officer Rodenberry testified that they
took their actions in stopping and searching appellant based upon
the radio dispatch about a black female and a white male who were
riding in a Toyota pickup truck and attempting to sell some
possibly stolen jewelry, that broadcast did not indicate that any
jewelry had been reported as stolen, or even that any jewelry had
been identified as missing.  There is nothing criminal about trying
to sell jewelry at a pawn shop, riding in a Toyota pickup, or
associating with white males.  All of those activities are
manifestly legal.  Even the State does not advance the obviously
absurd argument that trying to sell jewelry that nobody has
reported as stolen is a crime.  Jewelry that has not been stolen
can be bought and sold without permission from the police or
anybody else.
     The record contains no proof that the radio broadcast upon
which Lieutenant Bond based his investigatory stop described the
gait and manner of appellant, her associate, or anyone else at any
time whatsoever, and especially at a time relevant to suspecting
that somebody was trying to sell anything stolen.  Although Bond
testified at the suppression hearing that he had encountered
appellant on other occasions, he also testified that he did not
recognize her before he stopped the vehicle.  Plainly, the second
and third factors for determining reasonable suspicion were not
met.
     Bond and Rodenberry testified that the radio broadcast
indicated that a black female and a white male were trying to sell
þpossibly stolen jewelry.þ  The fourth factor in determining
reasonable suspicion (whether a person is carrying anything, and
what she is carrying) was not satisfied by that report.  At most,
the report that people were trying to sell þpossibly stolen
jewelryþ meant that whoever made the report should have been
interviewed by the police to determine whether there was reason to
suspect that anything had been stolen.  After all, þpossibly stolen
jewelryþ means that the jewelry was possibly not stolen at all. 
Because the record contains no proof that anybody had reported the
theft of any jewelry, the total absence of data on this factor
could not have produced a þreasonable suspicion.þ  At most, the
broadcasted report amounted to the kind of þbare suspicion . . .
[and] imaginary or purely conjectural suspicionþ that is expressly
disfavored in Rule 2.1.
     The radio broadcast provided no information to the police
regarding the manner of dress of either the white male or the black
female, and Lieutenant Bond witnessed nothing about the dress or
clothing of appellant or her associate that was suspicious before
he stopped the vehicle.  There is nothing in the record indicating
what time or day that the broadcast was sent, when the information
upon which the broadcast was issued first became known to the
police, or even what time appellant was stopped.  Thus, factors six
and seven were not met.
     Even if one takes the unwarranted view that the radio dispatch
was an overheard conversation within the meaning of the eighth
factor for determining reasonable suspicion in Rule 2.1, it remains
clear that the dispatch provided no information of suspicious
conduct or activity.  Again, trying to sell jewelry at a pawn shop
(the conduct that was reported during the dispatch) is not a crime
in Hot Springs, nor is it criminal for black females to try to sell
jewelry, to accompany white males who try to sell jewelry, or to
ride in yellow Toyota pickups with white males while attempting to
sell jewelry.  
     The record does not show that the radio dispatch indicated
what streets and areas of town were involved in the supposedly
suspicious activity.  The record does not specify anything about
the information provided by third persons suggesting that those
persons observed criminal activity.  One would think that if the
information upon which the police relied to issue the dispatch
leading to the investigatory stop had been specific and had
articulated reasons for believing that criminal activity was
occurring some place, the police officers who made the stop would
have testified about it.  To the contrary, three police officers
testified that they did not hear the radio broadcast at all
(Detective Michael Gregor, Investigator Michael Wright, and Officer
Rodenberry).  Although Lieutenant Bond testified that his "under-
standing" was that appellant and her associate had been to Montyþs
Pawn Shop and tried to sell some jewelry that appeared to have been
stolen, he admitted that the radio dispatcher did not indicate that
Montyþs Pawn Shop was the source of the report or the site where
the alleged attempted sale took place.  The basis of Bond's
"understanding" remains a mystery.  None of the officers testified
concerning information from third persons that indicated that
anybody had knowledge about a past, present, or potential jewelry
crime anywhere.  Clearly, factors nine and ten were not met.
     The tenth factor listed in the comment to Rule 2.1 is whether
a person is consorting with others whose conduct is þreasonably
suspect.þ  None of the police officers who testified at the
suppression hearing indicated that there was anything suspicious
about appellantþs association with Lewis Petter.  Of course, the
radio broadcast that prompted Lieutenant Bond to stop and detain
appellant and Petter did not identify anybody by name, at least as
far as can be determined from the record.   Nobody testified that
there is a suggestion of criminality whenever unidentified black
females are in the company of unidentified white males, or that
criminality is suggested by the fact that white males try to sell
jewelry while accompanied by black females.  
     The eleventh factor among those listed in the comment to Rule
2.1 involves a personþs proximity to known criminal conduct.  There
was no known criminal conduct involved at the moment of the stop. 
Indeed, the dispatch characterized the jewelry as "possibly
stolen," demonstrating that the nature of appellant's conduct was
uncertain in the mind of the unidentified police informant.  The
record does not contain any proof about the incidence of crime in
the neighborhood (factor twelve) because the record does not show
where the supposed effort to sell "possibly stolen" jewelry
occurred.  Nobody saw appellant or Petter try to conceal anything,
and the radio broadcast apparently did not indicate that anyone
else had tried to conceal anything (factor thirteen).  There was no
effort, apparent or otherwise, by appellant or Petter to avoid
identification or confrontation by the police (factor fourteen).
     It is obvious that none of the factors that are recognized as
relevant to determining whether a þreasonable suspicionþ exists
were present in this case.  Appellant and her associate were
stopped by Lieutenant Bond and searched by Officer Rodenberry based
upon nothing more than the broadcast radio report of a naked
suspicion that a white male and a black female had been attempting
to sell undescribed jewelry that "possibly" was stolen.  Nobody
investigated whether the report was valid.  Nobody investigated
whether anything had been stolen.  The record does not indicate
whether the jewelry was described during the radio broadcast so
that officers in the field would have been able to make a rational
judgment about stopping and detaining people who had jewelry in
their possession based on the description given.  Somebody known to
nobody identified in this record apparently contacted the police
and shared the suspicion that a white male and a black female were
trying to sell to a pawn shop jewelry that was never described and 
possibly was stolen.  If that is not a þbare suspicionþ and þan
imaginary or purely conjectural suspicion,þ neither the State nor
the majority have offered the slightest explanation how it could be
more naked, or what factor(s) provide the covering for its
nakedness.
     Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989),
involved a telephoned report by a store owner to a police officer
about a possible DWI suspect.  The officer went to the location
given him by the store owner and observed a vehicle that matched
the description given him.  The officer observed the vehicle parked
in a place that was not normally used by the public, its motor was
running, and its occupant appeared to be asleep.  The officer
observed a beer can positioned between the occupantþs legs.  The
officer was unable to rouse the occupant of the vehicle by tapping
on the window of the vehicle.  We held, in an opinion authored by
Judge Rogers, that þthe report from the store owner, combined with
independent observations made by the officer, clearly constituted
reasonable suspicionþ that the appellant in that case was involved
in criminal activity.  29 Ark. App. at 101, 778 S.W.2d 632
(emphasis added).  In this case, neither the unidentified person
whose report to the police prompted the radio broadcast nor anybody
else observed facts to create anything beyond the bare suspicion
that appellant, her associate, or anyone else was involved in
criminal activity. 
     In Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985),
we held that reasonable suspicion was established for an investiga-
tory stop of a vehicle that police officers spotted travelling on
a private road at 2:00 a.m. some four to six miles off a main
highway and at about ten miles an hour.  The officers testified
that there had been complaints in the area of people spotlighting
or night hunting, of things being stolen, and that people had been
growing marijuana in the area.  Based upon the suspicion that the
occupants of the vehicle were spotlighting for deer, their vehicle
was stopped.  Of course, night hunting, spotlighting, theft of
property, and growing marijuana are criminal offenses and in
Leopold, the police actually observed the suspicious activity.  
Moreover, the police had received reports that property had
actually been stolen.  Here, nobody reported that anything had been
stolen, or that anything else defined as criminal had occurred.  
     Contrary to the suggestion in the majority opinion, this case
does not involve an investigatory stop based on direct information
of criminal conduct by someone known by the police to have a
history of felonious conduct.  Johnson v. State, 319 Ark. 78, 889 S.W.2d 764 (1994), was a case involving an investigatory stop by a
police officer after the Fort Smith Police Department received an
anonymous call that two people were in a specified motel room
selling illegal drugs and using a blue van to make deliveries.  The
officer knew the appellant to have previous drug arrests and
convictions.  He saw the appellant leave the motel room and drive
off in the blue van.  He had received direct and unequivocal
information that the appellant was engaged in conduct that is
clearly criminal.  Here, although Lieutenant Bond knew appellant,
he testified that he did not know that she was in the pickup until
he stopped it.  There is no proof that anyone had done anything
illegal, let alone proof of direct information to that effect.  
     No proof remotely similar to that found to support the
investigatory stops in the cases cited by the majority  exists in
this case.  Reasonable suspicion was found in those cases because
the conduct observed by the police and reported by others fit the
definition of crimes, whether the police knew the persons stopped
were engaged in criminal activity or not.  Yet it is a far
different matter for the police to seize a person without even a
report or observation that the person is engaged in conduct that
can be called criminal.  As previously mentioned, trying to sell
jewelry is not a crime.  Nobody reported that persons were
committing a crime as in Johnson v. State.  There is no report that
thefts had occurred as was the case in Leopold v. State.  The
police did not observe appellant doing anything that could be
characterized as suspicious as in Nottingham.  This case did not
involve observations by the police of conduct suggestive of
preparations for an eventual crime, as when an officer observed
three men who appeared to be conducting surveillance of a store in
preparation for a robbery.  Terry v. Ohio, supra. In each of those
cases there were specific, particularized and articulated facts
that created the reasonable suspicion on the part of the police. 
Likewise, in Brooks v. State, 40 Ark. App. 208, 845 S.W.2d 530
(1993), we upheld an investigatory stop as based upon reasonable
suspicion where a citizen had spoken face to face with a police
officer and had related criminal activity (smoking crack cocaine in
a car) that he (the citizen) had observed.  
     In Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988), our
Supreme Court reversed a drug conviction upon a challenge to an
investigatory stop based upon information supplied to the Arkansas
State Police by the Missouri State Police who were, in turn, acting
upon a confidential informant that the Missouri State Police deemed
reliable.  The Supreme Court reversed the conviction, despite the
fact that certain aspects of the information relied upon by the
Arkansas State Police matched that supplied by the Missouri
officers, holding that because the record was devoid of testimony
showing why the Missouri police deemed their informant reliable,
there was insufficient proof to establish that the Arkansas police
had a reasonable suspicion for the stop.  In the present case, the
record is inadequate concerning the source of the information upon
which the radio broadcast was based.  The police apparently did not
know the source, let alone know if it was reliable.  Nor did they
know any of the details that led the informant to conclude that the
ring was "possibly stolen."  In short, the record before us falls
well below the quantum of evidence that the court found "devoid of
testimony" to support reasonable suspicion in Kaiser.  296 Ark. at
125, 752 S.W.2d  at 274.  
     Likewise, in Van Patten v. State, 16 Ark. App. 83, 697 S.W.2d 919 (1985), we reversed and dismissed a conviction for driving
while intoxicated, holding that the police stopped the appellant
without reasonable suspicion so that the trial court should have
suppressed all evidence of the DWI.  In writing for the majority in
that case, Judge Cloninger stated:
[W]e do not think Officer Tindle had specific, particular
or articulable reasons to suspect that a felony or a
misdemeanor involving danger of injury to persons or
property had been committed.  The radio dispatch that he
received was anonymous and it gave extremely general
information about a þloud partyþ and a þbrown Jeep.þ  
The officer did not investigate or confirm the complaint
before stopping appellant, so he had no reason to suspect
that a misdemeanor involving personal [injury] or
property damage had been committed by the occupant.  16
Ark. App. at 86, 697 S.W.2d  at 921 (Emphasis added).

     The same error occurred in this case.  Lieutenant Bond did not
investigate or confirm the apparently unverified complaint that a
white male and a black female were trying to sell possibly stolen
jewelry.  He was operating upon an unconfirmed and uninvestigated
suspicion that jewelry possibly had been stolen, having no
information concerning the description of the jewelry, the identity
of the person suspecting that the jewelry possibly was stolen, or
that any jewelry had been reported stolen that might have remotely
matched the unprovided description of the jewelry that the two
people were trying to sell.  However, rather than using the phoned
report as the basis for investigating the complaint in order to
determine if a reasonable basis for suspecting that anything
criminal had occurred, the police jumped to the conclusion that two
people were suspected of trying to sell stolen jewelry when nobody
had confirmed that anything was stolen.  Bond testified that he
stopped the vehicle to check for the jewelry based upon the
information obtained from the radio dispatch that was, in turn,
based upon information obtained from somebody else.  No supporting
facts for the suspicion reported to the police appear in the
record.  The identity, reliability, or even the existence of the
person whose suspicion prompted the radio dispatch cannot be found
in the record.  
     Despite the absence of anything close to an allegation or
report of suspected criminal activity and  substantiation for the
suspicion that anybody had done anything illegal, appellant, her
associate, and the vehicle in which they were riding were seized
within the meaning of the Fourth Amendment which protects against
unreasonable seizures.  The seizure was anything but consistent
with good or effective investigatory techniques.  As Sherlock
Holmes told Dr. Watson, without data, the mind insensibly begins to
twist facts to suit theories instead of twisting theories to suit
facts.  Investigation is the process by which law enforcement
agencies and personnel collect the data upon which reasonable
suspicion must ultimately rest.  Otherwise, law enforcement will
amount to little more than rumor-chasing, as was plainly the case
in this instance.  The police in this case knew only that an
informant had supplied general information about a "possible"
crime.  Lieutenant Bond's testimony proves that he did not know the
source of that information.  Lieutenant Bond's testimony was that
some--though not all--pawn brokers were reliable informants.  No
proof adduced at trial indicated whether this informant, if a pawn
broker at all, was one of the reliable ones or not. The police also
did not know why their unidentified and apparently unknown
informant believed that anything was þpossibly stolen.þ  They never
produced a description of the object that their informant reported
as having been þpossibly stolen.þ  They clearly lacked these vital
facts essential to support a reasonable suspicion that a jewelry
theft had occurred when the radio dispatch was issued and when
Lieutenant Bond made the investigatory stop. 
     The Fourth Amendment was placed in the Constitution of the
United States so that the liberty of persons and their property to
exist and move would not be curtailed by such a cavalier approach
to law enforcement.  If the police do not know enough to tell
whether a theft has been reported, how can they know that they are
stopping a suspected thief?  If they do not have a description of
stolen goods, how can they reasonably suspect that a person may
possess them?  If the police are unwilling or unable to determine
whether a theft occurred, and (if so) the description of what was
allegedly stolen (rather than þpossibly stolenþ), why should they
be authorized to interfere with the right of persons to go about
their affairs?  If the police are unwilling to investigate at all
to determine whether there is reason to suspect a crime, why should
they be allowed to stop people on a bare suspicion under the guise
of investigating a reported crime when, in fact, they are chasing
the rumor of a reported non-crime?   Neither the State nor the
majority opinion answers these obvious questions that underlie our
Fourth Amendment freedom from unreasonable seizure.  Instead, the
result today upholds a patently unreasonable seizure upon the 
naked þsay soþ of an unidentified informant whose reliability is
unknown and who provided information that is neither specific,
particularized, nor articulable as the law requires. 
     Given the total absence of proof to establish a reasonable
suspicion in this case and my view that the police conduct
challenged here amounted to what can best be termed þactive
ignoranceþ to use the words of Goethe, certain questions can
reasonably be raised that, while uncomfortable, are nonetheless
relevant to the larger question of the proper limits of law
enforcement in our society.  One wonders whether the police would
have been so cavalier about investigating the unsubstantiated
report of þpossibly stolenþ jewelry if the report had not mentioned
that a white male and a black female were attempting to sell
þpossibly stolenþ jewelry.  Could the oft-reported and documented
tension and suspicion by minority citizens and their neighborhoods
toward the police be based on similar incidents of police þinvesti-
gationsþ founded upon the naked suspicion of a store owner who may
have disapproved of the race of a person?  See Terry v. Ohio, 392 U.S. 1, 14 n.11 (1967).  One wonders whether the police would have
been as quick to accept the unidentified informant's mere suspicion
that a crime had "possibly" occurred and that appellant was a
likely suspect if she had been identified as a white female, or a
white male, or tastefully dressed, or driving a Mercedes sedan
rather than a Toyota pickup. 
     Perhaps the police would have been equally slipshod in their
þinvestigatoryþ approach in any case.  Perhaps not.  Nevertheless,
it is understandable that the police are viewed with distrust and
hostility in certain quarters of society (including minority
communities but by no means limited to them) when the police stop
people and frisk them based on nothing but an unverified and
unreliable suspicion from some unidentified person.  It is
understandable that persons who have been subjected to such
þinvestigatoryþ conduct view the police as an armed occupation
force employed to harass the less-favored and disfavored on behalf
of a privileged class, rather than a fair-minded and even-handed
agency engaged in the honest and diligent effort of criminal
investigation and law enforcement for the whole society.  This is
an unpleasant train of thought, to be sure, but it is an undeniable
reality against which the Fourth Amendment requirement of þreason-
able suspicionþ is intended.  In light of the majority's conclusion
that a suspicion wholly lacking in factual support is deemed
þreasonable,þ the wonder is not that the police are viewed with
distrust and resentment by some communities, but that there is as
much cooperation as currently exists for their efforts in all
communities.  Our decision today will not help matters.
     I respectfully dissent from the unfortunate result reached in
this case.  This case highlights the difference between proper
deference to legitimate police investigatory actions and acquies-
cence by trial and appellate judges to patently unreasonable police
conduct.  Sadly, I predict that our decision will hinder law
enforcement efforts by further alienating the police from the
people they are supposed to protect and serve as those people will
conclude that the right to be left alone is not one that the police
are obligated to respect.