Frette v. State

Paul FRETTE v. STATE of Arkansas

CA CR 96-477                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions I & II
                 Opinion delivered June 18, 1997


1.   Criminal procedure -- investigatory stop -- justification for.
     -- 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; the reliability of an informant reporting
     possible criminal activity may be shown by police observations
     that tend to corroborate the information provided; however, an
     accurate description of a particular vehicle, standing alone,
     does not establish an informant's reliability, and the mere
     fact that a caller identifies himself in no way establishes
     his trustworthiness.

2.   Evidence -- denial of motion to suppress -- factors on review.
     -- 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.  

3.   Criminal procedure -- investigatory stop made without
     investigation or independent verification of unknown
     informant's information -- appellant's motion to suppress
     should have been granted. -- Where the informant was a person
     unknown to and unseen by law enforcement officers who had not
     previously provided information to them and was not otherwise
     established to be reliable, the information given by the
     informant was limited to a description of a vehicle, its
     location, and that it was occupied by an elderly man seen
     drinking, and where there was no evidence of any police
     investigation or reasonable suspicion before the officer made
     the investigatory seizure, appellant's motion to suppress
     should have been granted; upon police investigation and
     independent verification of the information provided,
     reasonable suspicion may be established; that was not done
     here. 

4.   Search & seizure -- seizure within meaning of Fourth Amendment
     -- seizure occurred when officer ordered appellant to step
     from his vehicle. -- 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; a "seizure" occurs when the officer, by means of
     physical force or show of authority, has in some way
     restrained the liberty of a citizen; here a "seizure" occurred
     when the officer ordered appellant to step from his vehicle,
     so that this was an investigatory stop under Ark. R. Crim. P.
     3.1, and not a Rule 2.2 request for information.

5.   Appeal & error -- issue raised not properly before court --
     issue not reached. -- Appellant's contention that the facts to
     which he stipulated and the facts recited by the prosecuting
     attorney were insufficient to support the charge against him
     and that the trial court erred in accepting his guilty plea
     was not addressed as the issues raised were not properly
     before the appellate court; when one pleads guilty pursuant to
     Rule 24.3(b), the only claim cognizable on direct appeal is a
     challenge to the denial of a pretrial motion to suppress
     illegally obtained evidence. 


     Appeal from Washington Circuit Court; William Storey, Judge;
reversed and remanded.
     Kenneth Osborne, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.
     John Mauzy Pittman, Judge.
     Paul Frette was charged with violating Ark. Code Ann.  27-23-
113 (Supp. 1993), which prohibits a person from operating or being
in physical control of a commercial motor vehicle while having
alcohol in his system.  His pretrial motion to suppress evidence
obtained as a result of his arrest was denied.  Pursuant to Rule
24.3(b) of the Arkansas Rules of Criminal Procedure, he entered a
conditional guilty plea to the charge, reserving the right to
appeal the denial of his motion to suppress.  He was fined $250.00,
plus costs, and his driver's license was suspended for 120 days. 
Our review of the record requires us to conclude that his motion to
suppress should have been granted; therefore, we reverse to permit
appellant to withdraw his guilty plea as provided for in Rule
24.3(b).
     Appellant was arrested on June 15, 1995, based on information
provided by a tip called in to the dispatch office of the
Springdale Police Department by a person identifying himself as
Jerry Smith, a truck driver from Jonesboro, Georgia.  Smith
reported that he had seen an older man drinking beer while seated
behind the wheel in the cab of a red tractor-trailer that was
parked in a commercial truck parking lot behind the McDonald's
restaurant.  Based solely upon the information provided by the
dispatch office, an officer was sent to the location to investigate
and found appellant seated in the driver's position in the parked
truck.  The officer approached the driver's side of the truck and
ordered appellant to get out.  When appellant exited his vehicle,
the officer noted an odor of intoxicants and observed appellant's
poor balance.  The officer ordered appellant to perform field
sobriety tests.  When appellant failed all of the officer's field
sobriety tests, he was placed under arrest and transported to the
Springdale Police Department for booking where he made
incriminatory statements and registered .08 on a breathalyzer test. 
Appellant contends that prior to the stop, the officer observed
nothing that would indicate wrongful activity on appellant's part
and that the trial court erred in denying his motion to suppress
because the arresting officer lacked reasonable suspicion to stop
him.  The trial court found that appellant was lawfully stopped and
detained and denied appellant's motion to suppress evidence as a
result of the stop.
     Arkansas Rule of Criminal Procedure 3.1 provides that a law
enforcement officer lawfully present in any place may, in the
performance of his duties, stop and detain any person who he
reasonably suspects is committing, has committed, or is about to
commit a felony, or misdemeanor involving danger of forcible injury
to persons or of appropriation of or damage to property, if such
action is reasonably necessary either to obtain or verify the
identification of the person or to determine the lawfulness of his
conduct.  "Reasonable suspicion" is defined under Rule 2.1 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."
     Justification for an investigative stop depends upon whether,
under the totality of the circumstances, the police have specific,
particularized, and articulable reasons indicating the person or
vehicle may be involved in criminal activity.  United States v.
Cortez, 449 U.S. 411 (1981); Terry v. Ohio, 392 U.S. 1 (1967);
Johnson v. State, 319 Ark. 78, 889 S.W.2d 764 (1994); Hill v.
State, 275 Ark. 71, 628 S.W.2d 284, cert. denied 459 U.S. 882
(1982).  The reliability of an informant reporting possible
criminal activity may be shown by police observations that tend to
corroborate the information provided.  Alabama v. White, 496 U.S. 325 (1990); Bliss v. State, 33 Ark. App. 121, 802 S.W.2d 479
(1991).  However, an accurate description of a particular vehicle,
standing alone, does not establish an informant's reliability, see
Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988), and the mere
fact that a caller identifies himself in no way establishes his
trustworthiness, see Evans v. State, 33 Ark. App. 184, 804 S.W.2d 730 (1991).
     The informant in the present case was a person unknown to and
unseen by law enforcement officers, who had not previously provided
information to them, and was not otherwise established to be
reliable.  Cf. Adams v. Williams, 407 U.S. 143, 146-47 (1972)
(informant known to police officer personally provided information
to officer that was immediately verifiable at the scene;
"...informant might have been subject to immediate arrest for
making a false complaint had [police officer's] investigation
proved the tip incorrect"); Brooks v. State, 40 Ark. App. 208, 212,
845 S.W.2d 530 (1993) (citizen informant, not previously known to
police officer, came forward and personally provided to officer
information "...relating criminal activity that he had observed
[and] supplied the officer with the description of the vehicle, its
occupants and its license number"; prior to stop of vehicle, police
officer verified informant's description of vehicle, its license
number, and number of occupants).  Here, the information given by
the informant was limited to a description of a vehicle, its
location, and that it was occupied by an elderly man seen drinking.
     In reviewing a trial court's denial of a motion to suppress
evidence, we make an independent determination based on the
totality of the circumstances and reverse the trial court's ruling
only if it is clearly against the preponderance of the evidence. 
Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996).  We hold
that appellant's motion to suppress should have been granted. 
Kaiser v. State, supra; Evans v. State, supra.  This does not mean
that police must verify the reliability of an informant before
conducting an investigation based on the information provided by
the informant, as the information may be a "catapult to launch" an
investigation.  Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989).  Upon police investigation and independent verification
of the information provided, reasonable suspicion may be
established.  Id.  However, conspicuously absent from the case
before us is any police investigation or reasonable suspicion
before the officer made an investigatory seizure.
     The State argues that the officer acted under the authority of
Ark. R. Crim. P. 2.2 which permits a law enforcement officer to
request a person to furnish information in investigation of a
crime; and that there was not a "seizure" by the officer
approaching the vehicle to question appellant.  The State relies on
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. 
However, the court in Thompson held that there was not a seizure,
noting that there was no evidence that the officer restrained the
defendant's liberty by means of physical force or a show of
authority, as the officer did not order the defendant out of his
vehicle until after the officer noticed an odor of alcohol and had
reasonable suspicion.  The present case, however, is
distinguishable from Thompson because here the officer ordered
appellant out of his truck before making any investigation or
establishing reasonable suspicion.  Only after appellant stepped
from his truck did the officer first smell intoxicants and observe
poor balance sufficient to have reasonable suspicion.  
     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.  Phillips v. State,
supra.  A "seizure" occurs when the officer, by means of physical
force or show of authority, has in some way restrained the liberty
of a citizen.  Thompson v. State, supra; Cf. Hammons v. State, 327
Ark. 520, 940 S.W.2d 424 (1997).  We conclude that a "seizure"
occurred in this case by the officer ordering appellant to step
from his vehicle, so that this was an investigatory stop under Rule
3.1, and not a Rule 2.2 request for information.  Thompson v.
State, supra; see Phillips v. State, supra; accord Popple v. State,
626 So. 2d 185, 187 (Fla. 1993) (police officer approached
defendant, who was seated in vehicle, in order to request
information; defendant seized when officer directed defendant to
exit vehicle).  
     The dissenting opinion maintains that this seizure of
appellant was reasonable under the circumstances for reasons having
to do with officer safety.  This analysis is flawed for two
reasons.  In the first place, the informant did not provide any
information to the Springdale Police Department that would give
rise to a reasonable suspicion that the appellant was armed with a
weapon of some sort or was otherwise presently dangerous to the
officer.  Cf. Adams, 407 U.S.  at 145 (informant told police officer
that suspect "had a gun at his waist").  It is true, as the
dissenting opinion points out, that when the officer initially
approached appellant, he was seated in the cab of an eighteen-wheel
tractor-trailer truck.  According to the dissenting opinion, this
situation posed a danger to the officer's safety and, therefore,
provided the legal basis for the officer's seizure of appellant by
ordering him to get out of the cab of the tractor-trailer truck. 
This is the second flaw in the dissent's analysis -- it is
applicable in every "officer approaches car" case.  Every time a
police officer approaches an individual seated on the driver's side
of a parked vehicle of any size, the officer can always truthfully
state that he was concerned for his safety in that the individual
could try to run over him or could produce a firearm or other
weapon from the interior of the passenger compartment of the
vehicle.  Police officers can order the driver of a vehicle and any
passengers to exit the vehicle; however, a police officer may do so
only after having validly stopped the vehicle.  See Maryland v.
Wilson, ___ U.S. ___, 117 S. Ct. 882 (1997).  
     Appellant finally contends that the facts to which he
stipulated and the facts recited by the prosecuting attorney were
insufficient to support the charge against him and that the trial
court erred in accepting his guilty plea.  We do not address these
issues as they are not properly before this court.  When one pleads
guilty pursuant to Rule 24.3(b), the only claim cognizable on
direct appeal is a challenge to the denial of a pretrial motion to
suppress illegally obtained evidence.  See Scalco v. City of
Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994); Jenkins v. State,
301 Ark. 586, 786 S.W.2d 566 (1990); Fullerton v. State, 47 Ark.
App. 141, 886 S.W.2d 887 (1994).
     Reversed and remanded.
     Arey, Rogers, and Stroud, JJ., agree.
     Crabtree and Meads, JJ., dissent.

               Terry Crabtree, Judge, dissenting.
     I cannot agree with the majority opinion that this case should
be reversed.  At trial, the appellant alleged that his stop and
detention were illegal, and therefore, the items observed by the
officer and the subsequent test administered by the officer should
be suppressed.  The items he asked to suppress were þstatements of
the Defendant, blood alcohol analysis, physical description of the
Defendant on the date of his arrest, statements of an informant,
descriptions of field sobriety tests, and a physical of the
Defendant...."  The majority opinion rejects the Stateþs argument
that the officer was entitled to make inquiry pursuant to Ark. R. 
Crim. P. 2.2 and instead finds that there was a seizure of the
person pursuant to Rule 3.1.  On the facts of this case, I believe
this to be an incorrect determination.
     On June 15, 1995, Jerry Smith telephoned the Springdale Police
Department and informed them that he was a truck driver from
Jonesboro, Georgia.  Smith told the police that there was an older
male in a red tractor trailer who was drinking beer in the cab of
his truck in the parking lot at McDonaldþs.  Based on this
information, and without making independent observations of
appellant, Officer Kawano went to the door of appellantþs cab and
ordered him out.  When the appellant got out of his truck, the
officer smelled intoxicants and noticed that appellant had certain
mannerisms and poor balance.  These observations caused the officer
to have appellant undergo field sobriety tests, which appellant
failed.  Officer Kawano placed appellant under arrest and took him
to the police station for booking.  Appellant indicated that he had
consumed alcoholic beverages before getting in his truck.
     First, this is not the typical case in which an informant is
working for the police and obtains information.  The informant,
Jerry Smith, identified himself by name, address, and occupation. 
Surely, a concerned citizen is entitled to some credibility in a
situation such as this one.  There was not any indication in the
record that Smith had a grudge against the appellant or had any
reason to falsify his report to the police officers.  Accordingly,
it does not appear that this case falls into the category of
anonymous tips.
     Second, I cannot agree with the majority that this case
involved a detention of the person without probable cause or
reasonable suspicion.  The officer had obtained information that
was verified when he arrived at the location described by Smith. 
It was entirely reasonable for the officer to make inquiry of the
driver of the truck as to his status.  Rule 2.2 is more applicable
to this case than Rule 3.1 in that the officer, for his own safety,
had to ask the driver of the truck to step down.  Otherwise, the
officer would be put in considerable danger merely because of his
relative position to the driver in an eighteen-wheel tractor-
trailer truck.  Once the driver stepped to the ground, the officer
immediately smelled an odor of intoxicants and noticed certain
other indicia of intoxication leading ultimately to the arrest of
the defendant.  Officers' safety has long been recognized as a
reason to make minor intrusions into the sanctity of personal
privacy.  Saul v. State, 33 Ark. App. 160, 163, 803 S.W.2d 941, 944
(1991) ("When the safety of the officer is the proposed
justification for the intrusion on privacy, that consideration is
both legitimate and weighty.")  However, in this case, the
expectation of privacy was diminished considerably because the
appellant was on a public parking lot and in a commercial vehicle. 
Asking the driver to step down from his vehicle was a very minor
intrusion when considered against the interest of the State in
preventing the death of others because of drunk driving.  In
Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990), the court
stated:
          In his motion to suppress and here on appeal, the
     appellant contends that Officer Parsons' approaching his
     parked car constituted a seizure or detention and that
     this seizure was unlawful under the fourth amendment
     because the officer had no reason to suspect that the
     appellant had committed or was about to commit a crime. 
     The appellant's argument is contrary to established
     fourth amendment law.  Because this court has never
     addressed this argument, we take this opportunity to
     clarify the law in this area.

         Not all personal intercourse between policemen and
     citizens involves "seizures" of persons under the fourth
     amendment.  See Terry v. Ohio, 392 U.S. 1 (1967).  A
     "seizure" occurs when the officer, by means of physical
     force or show of authority, has in some way restrained
     the liberty of a citizen.  Id.

         Police-citizen encounters have been classified into
     three categories.  See U.S. v. Hernandez, 854 F.2d 295
     (8th Cir. 1988).  The first and least intrusive category
     is when an officer merely approaches an individual on a
     street and asks if he is willing to answer some
     questions.  Because the encounter is in a public place
     and is consensual, it does not constitute a "seizure"
     within the meaning of the fourth amendment.  Id. The
     second police encounter is when the officer may
     justifiably restrain an individual for a short period of
     time if they have an "articulable suspicion" that the
     person has committed or is about to commit a crime.  Id. 
     The initially consensual encounter is transformed into a
     seizure when, considering all the circumstances, a
     reasonable person would believe that he is not free to
     leave.  The final category is the full-scale arrest,
     which must be based on probable cause.  Id.  

          Here, Officer Parsons' approach to investigate the
     appellant's car parked in a public place fits into the
     first category, and thus is not a "seizure" within the
     meaning of the fourth amendment.  See W. LaFave, Search
     & Seizure,  9.2(h), at 408-09 (1987); see also cases
     cited therein Atchley v. State, 393 So. 2d 1034 (Ala.
     Crim. App. 1981) (court held there was no seizure under
     the fourth amendment where the police, having no
     knowledge of any criminal activity in the area,
     approached a car legally parked with its lights off after
     midnight and asked the driver if there was any problem
     and for some identification); State v. Harlan, 301 N.W.2d 717 (Iowa 1981) (court held there was no seizure, where
     a police officer stopped behind and approached the
     defendant's parked car and observed that the defendant
     had bloodshot eyes and smelled of alcohol.  Although the
     officer had no reports of crime in the area, had not seen
     the defendant commit any crimes, or suspected him of
     committing any specific crime, the officer felt the
     defendant was trying to evade him earlier when the
     officer had passed his car); and State v. Vohnoutka, 292 N.W.2d 756 (Minn. 1980) (court held no stop or seizure
     where officers saw driver of a motor vehicle shut off the
     car's lights and drive into a parking lot of a closed
     service station and approached the car and asked the
     defendant if anything was wrong and subsequently
     discovered marijuana in the car).þ

Id. at 408-10, 797 S.W.2d  at 451-52.  
     Similarly, I am of the opinion that this case falls in the
first category and the officer was justified in requesting
cooperation under Rule 2.2.  For the foregoing reasons, I dissent.
     Meads, J., joins in this dissent.