Tracy Donell Simmons v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

TRACY DONELL SIMMONS,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-386

DECEMBER 12, 2001

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT,

NORTHERN DISTRICT,

NO. CR98-56,

HON. RUSSELL ROGERS, JUDGE

AFFIRMED

On the night of March 14, 2000, Stuttgart police officer Joe Griffin observed appellant Tracy Donell Simmons's vehicle parked on the wrong side of the street, in the oncoming traffic lane. Through the passenger side window, a pedestrian was speaking to the driver. After the pedestrian fled and the car drove quickly away, Griffin pursued and stopped the vehicle, which was driven by Simmons. Griffin requested Simmons driver's license, and he complied. The driver's license had been suspended. A search of Simmons's person occurred during this stop, which resulted in the discovery of multiple bags of marijuana. Simmons was arrested and charged with possession of a controlled substance with intent to deliver. An inventory search of the car yielded more marijuana. The trial court denied his motion to suppress evidence seized pursuant to the search of his person and car. Simmons entered a conditional guilty plea, reserving his right to appeal the denial ofthe motion to suppress, and received a sixty-month sentence.1

On appeal, Simmons contends that: (1) the trial court erred in denying his motion to suppress the items seized from his person and car because Griffin lacked reasonable suspicion to stop his car; (2) the trial court erred in denying his motion to suppress the items seized from his person and car because Griffin lacked reasonable suspicion to believe that he was armed and presently dangerous to the officer or others to justify a Terry, pat-down search; (3) the trial court erred in denying his motion to suppress the items seized from the his person and car because Griffin did not have probable cause to justify searching beyond the scope of the Terry, pat-down search. We affirm.

At the suppression hearing, Officer Griffin testified that he was on nighttime patrol and observed Simmons sitting in a car that was parked on the wrong side of the street, talking to a pedestrian through the window. However, he admitted that he did not see Simmons's face. He testified that he pulled up behind them; that the pedestrian saw him and ran into a nearby lounge; and that the vehicle "proceeded from the scene in a very fast manner." He testified that Simmons did not stop at a stop sign and was driving recklessly and fast. He stated that he had previously issued Simmons a citation for driving on a suspended license.

Officer Griffin pursued and stopped the vehicle. He testified that he checked Simmons's license and found that it was still suspended. Griffin testified that, at that point, he advised Simmons that he was under arrest. He testified that, after noticing a bulge in Simmons's clothing, he searched him to ensure that he was not armed. He stated that the bulge felt soft, but that he went inside the pocket to pull out the bulge. He admitted that he was "not absolutely sure it was marijuana" until he looked at it. This search of Simmons yielded several bags of marijuana. He testified that he then also placed Simmons under arrest for the suspected marijuana. An inventory search of Simmons's car was then performed, which yielded a larger bag of marijuana above the sun visor.

Griffin's testimony differed from his police reports. Griffin's police reports do not indicate that Simmons ran a stop sign, drove recklessly, or that he had a suspended driver's license. The reports do not state that Griffin placed him under arrest when the license came back as suspended. The reports state that the car drove away quickly; that Griffin pursued the car; that he noticed a bulge in Simmons's pocket upon getting his drivers' license; that he searched Simmons at that point; and that he did not place Simmons under arrest until after he had searched him.

In reviewing a ruling denying a defendant's motion to suppress, we make an independent determination based upon the totality of the circumstances and view the evidence in the light most favorable to the State. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000). Further, this court will only reverse a trial court's ruling on a motion to suppress if the ruling was clearly erroneous. Id.

Simmons contends that no reasonable suspicion existed to stop his vehicle because Officer Griffin could not be sure it was Simmons who was driving, his report detailed no act that could raise any suspicion of criminal activity, and because driving on a suspended driver's license is not a felony or type of misdemeanor justifying a Rule 3.1 stop. Addressing the suspended license issue, Simmons contends that no reasonable suspicion or probable cause existed because Griffin was not certain that Simmons's license was suspended until after he stopped him and that such after-acquired knowledge did not create the requisite reasonable suspicion or probable cause. The State, however, contends that this case involves only the one issue of probable cause. The State argues that Officer Griffin's knowledge that Simmons's license had recently been in suspended status was sufficient probable cause to stop the vehicle and arrest Simmons.

We do not address Simmons's contention of a lack of reasonable suspicion because we hold that probable cause, not merely reasonable suspicion, justified the stop of Simmons's vehicle and that probable cause to arrest without a warrant arose when Griffin learned of the suspended status of Simmons's driver's license. While we agree that probable cause supports the stop and the search incident to arrest, we need not address the State's contention that knowledge of a prior suspended license can provide probable cause to stop a vehicle.

Probable cause exists when the facts and circumstances within the officer's knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Travis v. State, 331 Ark. 7, 959 S.W.2d 32(1998). The question of whether the officer had probable cause to make a traffic stop does not depend upon whether the defendant is actually guilty of the violation that was the basis for the stop; all that is required is that the officer had probable cause to believe that a traffic violation had occurred. Id. In assessing the existence of probable cause, our review is liberal rather than strict. Id. Probable cause to stop Simmons existed separate and apart from Officer Griffin's knowledge that Simmons's driver's license had previously been suspended. Probable cause existed due to Simmons's violations of the law, in the presence of Officer Griffin, by parking his vehicle on the wrong side of the street, speeding, driving recklessly, and running a stop sign, to which acts Officer Griffin testified. See Ark. Code Ann. §§ 27-51-1301, 27-51-601, 27-51-104 (1987), 27-51-201 (Supp. 2001).

Upon learning that Simmon's driver's license was suspended, probable cause existed for Simmon's arrest. Under Arkansas Rule of Criminal Procedure 4.1, Griffin had the authority to arrest Simmons without a warrant for violating the law, driving on a suspended license, in the officer's presence. See also Hazelwood v. State, 328 Ark. 602, 945 S.W.2d 365 (1997). Incident to arrest, the police may search persons and property for protection of the officers making the arrest and in order to seize contraband. McKenzie v. State, 69 Ark. App. 186, 12 S.W.3d 250 (2001). Griffin's report indicated that he did not place Simmons under arrest until after he patted Simmons down and discovered the marijuana, whereas he testified at trial that he arrested Simmons immediately upon discovering that the license was suspended. However, this inconsistency is of no import as "[a] search incident to a lawful arrest is valid even if conducted before the arrest, provided the arrest and search aresubstantially contemporaneous and that there was probable cause to arrest prior to the search." Id. at 188, 12 S.W.3d at 251. Additionally, this inconsistency was for the trial court to resolve, which it resolved in the State's favor. See Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998); State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995).

Simmons contends that, because of the discrepancies between Officer Griffin's testimony and his police reports, Griffin's testimony is unreliable and cannot provide a basis upon which to find probable cause or reasonable suspicion. This argument has no merit. It is well settled that the credibility of witnesses is for the trial court to weigh and assess. Green, supra; McFadden, supra; Mills, supra. We defer to the trial court's ascertainment of the credibility of the witnesses. See Green, supra. In Wright v. State, 300 Ark. 259, 778 S.W.2d 944 (1989), the appellant made a similar argument and the court rejected it, stating that the minor discrepancies, conflicts, and inconsistencies in the report and the testimony were for the jury to assess in weighing the testimony. Id. While Griffin did testify to facts that were not in his report, and inconsistencies existed as to when the arrest was made known to Simmons, such inconsistencies were for the trial court to resolve. The trial court resolved these conflicts in the State's favor and such resolution was not clearly erroneous.

The trial court denied the motion to suppress based upon a conclusion that the search was a justifiable Terry search. However, we may affirm the denial of a motion to suppress for reasons different than those relied upon by the trial court. See McKenzie, supra. We hold that the stop of Simmons's vehicle was supported by probable cause. We further hold that Officer Griffin had authority to arrest Simmons without a warrant when he discoveredthat Simmons's driver's license was suspended; thus, the search was a valid search incident to arrest. Accordingly, we affirm the trial court's denial of the motion to suppress.

Affirmed.

Crabtree and Baker, JJ., agree.

1 This is Simmons's second appeal. We dismissed his first appeal, Simmons v. State, 72 Ark. App. 238, 34 S.W.3d 768 (2000), for lack of jurisdiction due to his failure to strictly comply with Arkansas Rule of Criminal Procedure 24.3(b). Subsequent to our dismissal, the trial court, without objection by the State, allowed Simmons to withdraw his guilty plea in order to then strictly comply with Rule 24.3(b).