Vega v. State

Manuel VEGA v. STATE of Arkansas

CA CR 96-410                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                Opinion delivered March 12, 1997


1.   Search & seizure -- canine sniff not search within meaning of
     Fourth Amendment -- no reasonable cause necessary to justify
     having dog smell appellant's truck. -- A canine sniff of the
     exterior of an automobile that is parked in a public area or
     is legitimately within the custody of the police is so limited
     an intrusion of protected privacy interests as not to amount
     to a Fourth Amendment search; therefore, no reasonable cause
     was necessary to justify having the dog smell appellant's
     truck.

2.   Search & seizure -- readily moveable vehicle may be searched
     without warrant where reasonable cause exists to believe that
     vehicle contains things subject to seizure. -- An officer who
     has reasonable cause to believe that a moving or readily
     movable vehicle contains things subject to seizure may,
     without a search warrant, stop, detain, and search the vehicle
     and may seize things subject to seizure discovered in the
     course of the search where the vehicle is on a public way or
     other area open to the public.

3.   Evidence -- review of denial of motion to suppress evidence
     obtained through warrantless search -- independent
     determination made based on totality of circumstances. -- In
     reviewing the denial of a motion to suppress evidence obtained
     through a warrantless search, the appellate court makes an
     independent determination based on the totality of the
     circumstances but will not reverse the trial court's decision
     unless its finding is clearly against the preponderance of the
     evidence. 

4.   Search & seizure -- truck readily movable by friend -- trial
     court properly denied appellant's motion to suppress. -- While
     appellant had been arrested and arguably was not free to leave
     until he posted bond, his friend, who had driven the truck to
     the detention center, was not under arrest and was free to
     leave; the truck was readily movable, and no further exigency
     was required to search a vehicle in an area open to the
     public; the trial court did not clearly err in denying
     appellant's motion to suppress.  


     Appeal from Pope Circuit Court; John S. Patterson, Judge;
affirmed.
     Paul Johnson, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., and Stuart A. Clearly, Law Student Admitted to Practice
Pursuant to Rule XV(E)(1)(b) of the Rules Governing Admission to
the Bar of the Arkansas Supreme Court under supervision of Kelly K.
Hill, Deputy Att'y Gen., for appellee.

     John Mauzy Pittman, Judge.
     Manuel Vega was charged with possession of a controlled
substance (marijuana) with intent to deliver.  His pretrial motion
to suppress evidence obtained as a result of a search of his pickup
truck was denied.  He then entered a conditional plea of guilty,
reserving the right to appeal as provided in Ark. R. Crim. P.
24.3(b).  He was sentenced to a term of ten years in the Arkansas
Department of Correction, with imposition of an additional term
suspended.  See Ark. Code Ann.  5-4-104(e)(3) (Supp. 1995).  On
appeal, he contends that the trial court erred in denying his
motion to suppress.  We affirm.
     On April 4, 1995, Trooper Bill Glover of the Arkansas State
Police stopped a pickup truck for speeding.  Appellant was the
driver and was accompanied by a passenger, Sherry Ford.  The
trooper discovered that the license plate on the truck belonged to
a different vehicle and that appellant's driver's license had been
suspended.  Appellant was arrested for speeding and driving on a
suspended license and was told that he would have to post bond
before he could continue on his journey.  Appellant and Ms. Ford,
with Ms. Ford driving, followed the trooper to the Pope County
Detention Center to post bond.  Upon arriving at the detention
center, a dog trained and certified in the detection of drugs was
allowed to smell the outside of the truck.  The dog aggressively
"alerted" to the bed of the truck, indicating the presence of
illegal drugs.  The dog's reaction, together with the fictitious
license plate and the trooper's visual observation of alterations
to the bed of the truck, caused Trooper Glover and other officers
to search the truck.  The search uncovered 158 pounds of marijuana
hidden under a false bed.
     On appeal, appellant first contends that his truck was
searched without reasonable cause to believe that it contained
things subject to seizure.  Appellant does not challenge the
legality of the initial stop, his arrest, or how his truck came to
be parked in the public parking lot of the detention center.  Nor
does he contend that the police lacked reasonable cause to search
his truck after the dog alerted to it.  Instead, appellant contends
that the canine sniff was itself a search and that, at the time
that the dog smelled the truck, the officers did not yet have the
required reasonable cause.  The view we take of the case does not
require us to decide whether the police had reasonable cause prior
to the dog's reaction.
     Appellant's argument flows from and depends upon the premise
that the canine sniff was a search within the meaning of the Fourth
Amendment.  However, that premise is a false one.  We hold, as many
other courts have, that a canine sniff of the exterior of an
automobile that is parked in a public area or is legitimately
within the custody of the police is so limited an intrusion of
protected privacy interests as to not amount to a Fourth Amendment
search.  See, e.g., United States v. Friend, 50 F.3d 548 (8th Cir.
1995), vacated and remanded on other grounds, 116 S. Ct. 1538
(1996); United States v. Jeffus, 22 F.3d 554 (4th Cir. 1994);
United States v. Ludwig, 10 F.3d 1523 (10th Cir. 1993); United
States v. Seals, 987 F.2d 1102 (5th Cir. 1993), cert. denied, 114 S. Ct. 155 (1993); United States v. Rodriguez-Morales, 929 F.2d 780
(1st Cir. 1991), cert. denied, 502 U.S. 1030 (1992); United States
v. Dicesare, 765 F.2d 890, amended on other grounds, 777 F.2d 543
(9th Cir. 1985); see also United States v. Place, 462 U.S. 696
(1983); United States v. Vasquez, 909 F.2d 235 (7th Cir. 1990),
cert. denied, 501 U.S. 1217 (1991).  Therefore, no reasonable cause
was necessary to justify having the dog smell appellant's truck.
     Appellant next contends that, after the dog alerted to the
truck, the officers should not have searched it without first
obtaining a warrant.  He argues that, while the officers then had
reasonable or probable cause to believe that the truck contained
contraband, there were no exigent circumstances sufficient to
justify a warrantless search because he was in the detention center
and the truck was in the custody of the police.  We cannot agree.
     An officer who has reasonable cause to believe that a moving
or readily movable vehicle is or contains things subject to seizure
may, without a search warrant, stop, detain, and search the vehicle
and may seize things subject to seizure discovered in the course of
the search where the vehicle is on a public way or other area open
to the public.  Ark. R. Crim. P. 14.1(a); Bohanan v. State, 324
Ark. 158, 919 S.W.2d 198 (1996).  In reviewing the denial of a
motion to suppress evidence obtained through a warrantless search,
this court makes an independent determination based on the totality
of the circumstances, but will not reverse the trial court's
decision unless its finding is clearly against the preponderance of
the evidence.  Lopez v. State, 29 Ark. App. 145, 778 S.W.2d 641
(1989).
     Here, while appellant had been arrested and arguably was not
free to leave until he posted bond, Ms. Ford, who had driven the
truck to the detention center, was not under arrest and was free to
leave.  The truck was readily movable, and no further exigency is
required to search a vehicle in an area open to the public.  See
Bohanan v. State, supra.  We cannot conclude that the trial court
clearly erred in denying appellant's motion to suppress.  
     Affirmed.
     Rogers and Crabtree, JJ., agree.