Michael John Hunter and James Kavin Callahan v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 01-541

February 20, 2002

MICHAEL JOHN HUNTER AND

JAMES KAVIN CALLAHAN APPEAL FROM CRAWFORD COUNTY

APPELLANTS CIRCUIT COURT

VS.

HONORABLE FLOYD G. ROGERS

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Michael John Hunter and James Kavin Callahan entered condi tional pleas of guilty to the charge of possession of marijuana with intent to deliver in violation of Ark. Code Ann. § 5-64-401 (Supp. 1999). Both men were sentenced to twenty years with twelve years suspended. Pursuant to Ark. R. Crim. P. 24.3(b), appellants now appeal the trial court's denial of their motion to suppressevidence found during a canine sniff of a rental car they occupied. We affirm.

Sergeant Keith Eremea testified that he stopped appellants on September 14, 2000, for following too closely behind a semi-trailer rig. Hunter, who was driving the Cadillac, produced a valid Maryland driver's license and explained that he was driving a rental car. Sergeant Eremea asked to see the rental agreement and discovered that the car was rented in California to Todd Wright and was to be returned in Maryland on September 16, 2000. Eremea noted that there were no other authorized drivers listed on the rental agreement. Not realizing who the passenger might be, Eremea asked for Callahan's driver's license as well, and it was also valid. Hunter explained to Eremea that Wright had to be dropped off in Oklahoma City to take care of his grandmother who had become ill. When Eremea asked how he could contact Wright, Hunter told Eremea that there was no way to reach Wright. Eremea testified that, in his experience, car rental companies usually want the rental vehicle towed when the renter is not an occupant in the vehicle. Eremea testified that at that point he did not know whether the rental car had been stolen or whether Wright had been the victim of foul play. Eremea asked for permission to search the vehicle, and Hunter refused. Eremea then told appellants that they were free to leave but that the vehicle was staying put until the car rentalcompany could be contacted. Trooper Rhoades arrived within a few minutes of the stop with his drug-sniffing dog. Appellants stood by while the dog sniffed the exterior of the rental car. The dog "alerted" at the rear door seam where it meets the trunk, and the officers opened the trunk. Underneath a blanket with air freshen ers piled on top, the officers found some 250 pounds of marijuana. In denying appellants' motion to suppress evidence, the trial court found that appellants lacked standing to object to the search of the rental car because they did not own the rental car and could not produce the person that it was rented to in order to corrobo rate their story. The trial court also found that, in any event, the dog's alert provided probable cause for the officers to search the trunk of the vehicle.

In reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Dye v. State, 69 Ark. App. 15, 9 S.W.3d 539 (2000).

Appellants argue that they have standing to contest the search of the rental car, not because they had a possessory interest in the car,1 but because they were occupants of the vehicle and theywere "seized." They maintain that they were effectively seized when they were told that they could not resume their journey in the rental car. We disagree with appellants' contention that they were seized.

In United States v. Mendenhall, 446 U.S. 544, 546 (1980), the United States Supreme Court said:

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by the officer, some physical touching of the person of the citi zen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

See also Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988); Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996). None of the Mendenhall exemplary factors are present here, and appellants concede that they were told they were free to leave, albeit onfoot. We conclude that neither appellant was seized by the officers at the time of the search.

The cases relied on by appellants are distinguishable. In Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997), the supreme court, in dicta, said that an occupant of a vehicle has standing to challenge the seizure of his person. This does not mean that the occupant automatically has standing to challenge a search of the vehicle, and the court's statement has no relevance, in any event, if the defendant's person has not been seized.

Appellants rely on Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998), for the proposition that "ordering" a person out of his vehicle may constitute a seizure. In Frette the officer approached a parked vehicle based on an anonymous tip. Here, the officer stopped the vehicle, a stop that appellants do not challenge as unreasonable.

Appellants' reliance on Laime v. State, 73 Ark. App. 377, 43 S.W.3d 216 (2001), is also misplaced. Standing was not an issue in Laime. Furthermore, that decision was overturned by the supreme court on petition for review. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001).

For the reasons stated the decision of the trial court is affirmed.

Griffen and Crabtree, JJ., agree.

1 We assume that this argument is not made here because the caselaw does not seem to support it. See Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999); Stanley v. State, 330 Ark.642, 956 S.W.2d 170 (1997); Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993); State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). We do note that this was the only basis for standing urged to the trial court and that this is perhaps an independent basis to affirm. Parties may not change their arguments on appeal and are limited to the scope and nature of their arguments made below. Hunter v. State, 330 Ark. 198, 952 S.W.2d 145 (1997).