William Matthew Foster v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CACR01-546

NOVEMBER 14, 2001

WILLIAM MATTHEW FOSTER AN APPEAL FROM THE FAULKNER

APPELLANT COUNTY CIRCUIT COURT v. [CR-2000-1]

STATE OF ARKANSAS HON. DAVID LEE REYNOLDS,

APPELLEE CIRCUIT JUDGE

AFFIRMED

Appellant was stopped for speeding and given a traffic citation. The officer testified that he then told appellant he was free to leave, but thereafter, the officer initiated a new investigation because appellant "appeared nervous." The police requested consent to search, and appellant, according to officers, gave consent to the search. Appellant denies giving consent to search. Once the search began, police found contraband and a weapon in the trunk. Appellant was subsequently arrested and found guilty of attempted manufacture of methamphetamine, being a felon in possession of a firearm, and speeding. Following a bench trial, the trial court sentenced appellant as a habitual offender to fifteen years in the Arkansas Department of Correction.

On appeal, appellant challenges the trial court's denial of his motion to suppress. Appellant concedes that any expansion in the scope of a stop to include investigation of other suspected illegal activity is permissible under the Fourth Amendment only if the officer has a reasonable and articulable suspicion that other criminal activity is afoot, but argues that since he objected to the continued investigation, questioning, and search, then the continued stop after issuance of the citation amounted to a detention.

In reviewing a trial court's ruling on a motion to suppress, the court makes an independent determination based on the totality of the circumstances, and reverses only if the ruling is clearly against the preponderance of the evidence. Owen v. State, 75 Ark. App. 39, 53 S.W.3d 62 (2001). When officer Charles Randall of the Greenbrier Police Department stopped appellant, the officer testified that appellant's hand was shaking when he presented his identification to him. After checking his identification, Officer Randall learned that appellant was on parole and had previous felony convictions. He gave appellant a ticket and requested consent to search. Officer Randall testified that appellant gave him oral consent to search the vehicle and that he informed him of his right to refuse.

Searching the vehicle, Randall smelled a strong ether odor that seemed to intensify as he moved toward the rear of the vehicle. He discovered paraphernalia associated with the manufacture of methamphetamine and a .38 caliber revolver in the trunk. Foster was then placed under arrest and charged with attempted manufacturing, being a felon in possession of a firearm, possession of drug paraphernalia, and speeding.

A police officer may stop a motorist only if he has probable cause to believe that a person has committed a traffic offense at the time of the initial stop. Laime v. State, 73 Ark.App. 377, 43 S.W.3d 216 (2001). Renewed detention after the completion of an initial traffic stop may occur only if events transpiring during the stop give rise to a reasonable suspicion that justifies further detention. Id. Rule 3.1 of our Rules of Criminal Procedure provides that an officer may stop and detain a person whom he "reasonably suspects is committing, 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. . . ." Muhammad v. State, 64 Ark. App. 352, 355, 984 S.W.2d 822, 824 (1998). Our legislature has codified factors to consider when determining whether an officer has grounds to "reasonably suspect" a person detained pursuant to Rule 3.1. These factors include the demeanor, character, and background of the suspect. Muhammad, supra (citing Ark. Code Ann. § 16-81-203 (1987)).

In part, Foster argues that after he was given a speeding ticket, the reason for the stop ended and, unless another situation arose under Rule 3.1, he should have been allowed to leave. Instead, Randall asked to search his car, and the officer testified that Foster agreed, thus extending the amount of time he was allowed to be lawfully detained by his own permission. If permission was not obtained, appellant should have been released. However, if consent was lawfully obtained, Foster himself extended the stop by authorizing the search. See U.S. v. Beatty, 170 F.3d 811(8th Cir. 1999).

Foster testified that the officers had him "scared to death. They surrounded me with about three or four police cars. I didn't even know what was going on. That was just for the citation." He further testified that "they issued my citation and everything, told me to stepout of the car, started searching my vehicle. They didn't ask if they could search my vehicle. I'm certain of that."

Officer Randall, on behalf of the State, testified that he

noticed [Foster] was nervous and shaking real bad as he brought the cigarette up. I found that unusual. He was very nervous. He was able to provide the documentation I requested. I didn't notice any unusual odors about the vehicle at that point. . . . I issued a citation for speeding. Afterwards, he was still acting real nervous. . . . I asked Mr. Foster for consent to search his vehicle. He said sure, there's nothing in it, then jumped out of the vehicle. I advised him that he didn't have to let me search the vehicle. I didn't make any threats or promises I would do anything if he let me look inside the vehicle. I knew he had a criminal history from when I run [sic] his driver's license. He was on parole at the time and had several past felonies. . . .

My reasoning for asking him to search his vehicle was he was so nervous that he made me uncomfortable. I thought he may have a weapon in the vehicle. . . . His nervousness was my primary concern, even though he was free to go.

Officer Randall testified that when Foster stepped out of the vehicle, he smelled the strong odor of ether, and that when he stuck his head in the back seat of the car, the smell of ether was even stronger. He asked appellant if he could look in the trunk and testified that appellant "opened the trunk for me." Officer Rod Gibson testified that they asked appellant for consent to search and that consent was given. Officer Charles Robinson testified that Randall asked if he could look inside the vehicle and Mr. Foster told him to go ahead. He further testified that they then preceded to search, and "Randall asked about the trunk and Foster told him to go ahead and look and opened the trunk for him." The trial court, as trier of fact in this case, resolves any inconsistencies in testimony. Brown v. State, 35 Ark. App. 156, 814 S.W.2d 918 (1991).

Reviewing the totality of the circumstances, we find that Officer Randall had reasonable suspicion to extend Foster's stop. According to Officer Randall, it was apparent from appellant's demeanor that he was nervous; Randall was also aware of appellant's criminal history. Further, we find that appellant consented to the search by opening the trunk of the vehicle for the officers; thus, he himself extended the stop by authorizing the search.

Affirmed.

Robbins and Crabtree, JJ., agree.