Antonio James v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISIONS I

CACR00-608

DECEMBER 20, 2000

ANTONIO JAMES

AN APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT

v. [CR99-3120]

STATE OF ARKANSAS HONORABLE JOHN B. PLEGGE, APPELLEE CIRCUIT JUDGE

AFFIRMED

Appellant, Antonio James, entered a conditional plea of guilty to the charge of possession of a controlled substance, marijuana (second offense), pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure. His sole argument on appeal is that the trial court erred by refusing to grant his motion to suppress evidence.

At the hearing on the motion to suppress, Police Officer Mark Collins testified that on April 12, 1999, he was driving eastbound on 12th Street when he observed a gray Honda Accord parked at a gas station. He testified that a group of men who were sitting in the vehicle appeared to be talking to another man who was leaning inside the vehicle. Collinstestified that he did not pay close attention to the men until "all of the men, including the man leaning in, looked at [him] with a surprise[d] and startled look on their faces." At that moment, Collins testified, the man leaning inside of the vehicle quickly left and the vehicle rapidly exited the gas station, going westbound on 12th Street. Collins testified that he then became suspicious of the reaction taken by the vehicle's occupants and turned his patrol car around to follow the vehicle. Collins testified that the vehicle was being driven at an undetermined high rate of speed and that he caught up with the car at the intersection of Bittersweet and Cleveland Streets. Collins testified that he was able to conduct a traffic stop of the vehicle when he noticed that the driver of the vehicle had made an improper turn by failing to give a turn signal indicating that he was going to turn right at the yield sign. According to Collins, when he approached the driver's side of the vehicle, he noticed a strong smell of marijuana. Appellant was the driver and he was accompanied by two passengers, one who sat in the front passenger seat and the other in the rear passenger seat. After appellant consented to a search of the vehicle, Collins found marijuana in a map case behind the driver's seat.

Collins testified that prior to observing the occupants at the gas station, he did not intend to stop appellant's vehicle. Collins further admitted that had appellant not made a traffic violation, he had no a reason to stop appellant. While Collins later admitted that he followed appellant's vehicle in order to stop it, he then testified that he followed the vehicle based upon his "initial indications" regarding the occupants of the vehicle. Collins testified that the basis of his suspicions was: 1) the indirect route appellant took before being stopped;2) the vehicle's high rate of speed; 3) facial expressions of the vehicle's occupants when they initially saw him. Collins further testified that when he first observed appellant's car at 12th and Fair Park, appellant was seen reaching under the seat of his vehicle.

In reviewing the denial of a motion to suppress, the appellate court makes an independent examination based on the totality of the circumstances and reverses only if the trial court's ruling was clearly against the preponderance of the evidence. Kearse v. State, 65 Ark. App. 144, 986 S.W.2d 423 (1999). In determining whether the trial court's ruling was clearly against the preponderance of the evidence, the appellate court must review the evidence in the light most favorable to the State. Davis v. State, 68 Ark. App. 346, 8 S.W.3d 36 (1999).

Appellant does not challenge the legality of the search of his vehicle. Rather, appellant contends that the trial court erred by refusing to grant his motion to suppress the evidence because the stop and arrest conducted by Officer Collins was merely a pretext to conduct an otherwise illegal search of his vehicle.

Arkansas Rule of Criminal Procedure 4.1 (a) (iii) provides that a law enforcement officer may make a warrantless arrest of a person when the officer has reasonable cause to believe that the person has committed any violation of law in the officer's presence, including traffic offenses. Wimbley v. State, 68 Ark. App. 56, 3 S.W.3d 709 (1999). The question of whether an officer has probable cause to make a traffic stop does not depend upon whether the defendant is actually guilty of the violation that was the basis of the stop. Id. All that is required is that the officer had probable cause to believe that a traffic violationhad occurred. Travis v. State, 331 Ark. 7, 959 S.W.2d 423 (1998). Whether the defendant is actually guilty of the traffic violation is for the jury or court to decide and not for an officer on the scene. Id.

In this case, Officer Collins had reasonable cause to believe that appellant was violating Ark. Code Ann. § 27-51-403 (b), which requires that "[a] signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet (100') traveled by the vehicle before turning." Nevertheless, appellant argues that Officer Collins was searching for a reason to stop his vehicle before Collins made the traffic stop, and that it was "Officer Collin's intent all along to stop the appellant's car." In other words, appellant argues that the stop of his vehicle was a pretext to conduct an illegal search for contraband.

In this case, we cannot conclude that the stop was invalid as a matter of pretext. In Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994), our supreme court stated that an ulterior motive does not in itself render an arrest pretextual when there is a valid overt reason to make the arrest. Id. In Mings, the court quotes an example from Professor LaFave to illustrate this point: "[I]f the police stop X's car for minor offense A, and they `subjectively hoped to discover contraband during the stop' so as to establish serious offense B, the stop is nonetheless lawful if `a reasonable officer would have made the stop in the absence of the invalid purpose.'" Police searches are to be tested under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved. Kimery v. State, 63 Ark. App. 52, 973 Ark. 836 (1998). The test is whether a "reasonableofficer" would have made a traffic stop absent his ulterior motive. Id.

In this case, although Collins admitted that he followed appellant's car in order to stop it, based upon the suspicions he gathered from appellant and his passengers, there was also evidence that Collins had probable cause to conduct the traffic stop. Although Collins may have had an ulterior motive in stopping appellant's vehicle, the stop was not pretextual when Collin observed appellant failing to give a turn signal indicating appellant's intention to turn right at the yield sign. Further, an "otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity." Mings, supra. In applying the standard of objective reasonableness to the case at bar, we cannot say that the stop was invalid as a matter of pretext where appellant committed a traffic violation in the presence of Officer Collins. We conclude that the motion to suppress was properly denied.

Affirmed.

Robbins, C.J., and, Hart, J., agree.