Louis Keith Konecny v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION IV

LOUIS KEITH KONECNY,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-901

FEBRUARY 20, 2002

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT,

NO. CR1999-285,

HON. PHILLIP T. WHITEAKER,

JUDGE

AFFIRMED

Appellant Louis Konecny was stopped by Stuttgart police officer Bradley Taylor on the night of August 31, 1999. Upon stopping Konecny, Officer Bradley asked him if he had been drinking. After Konecny admitted that he had been, Officer Bradley conducted three field sobriety tests, each of which Konecny failed. Officer Bradley arrested Konecny and a Breathalyzer test was given to Konecny, revealing a blood alcohol content of .174 percent. Konecny was convicted in Stuttgart Municipal Court of speeding and driving while intoxicated. He appealed to the circuit court, and after a trial de novo, the trial judge found him guilty of driving while intoxicated, but not guilty of the speeding charge. The State had failed to produce in discovery the necessary documentation to show that the arresting officer, Officer Taylor, was a certified police traffic radar operator.

Konecny filed motions to suppress the evidence in both the municipal court and the

circuit court, arguing that Officer Bradley lacked probable cause to stop his vehicle and that, accordingly, all evidence obtained from the stop should be suppressed. Both motions were denied, and Konecny now appeals the circuit court's denial of the motion to suppress. He contends that because Officer Bradley was not shown to be a certified radar operator, his engagement in radar activities should be held invalid under Ark. Code Ann. § 12-9-404 (Repl. 1999) and that all evidence obtained pursuant to the invalid action must be suppressed. We affirm.

Arkansas Code Annotated section 12-9-404 provides:

A police traffic radar operator who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police traffic radar operator and any action taken shall be held as invalid.

Prior to an amendment in 1989, Arkansas Code Annotated section 12-9-108(a) contained language similar to § 12-9-404. Section 12-9-108(a) previously provided that:

A person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid.

In 1989, however, our General Assembly amended section 12-9-108(a) to provide that the mere failure to meet law enforcement standards shall not invalidate actions taken by law enforcement officers. The section now provides:

(a) Actions taken by law enforcement officers who do not meet all of the standards and qualifications set forth in this subchapter or made by the Arkansas Commission on Law Enforcement Standards and Training shall not be held invalid merely because of the failure to meet the standards and qualifications.

Ark. Code Ann. § 12-9-108(a) (Repl. 1999).

Konecny relies upon Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), and Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989), which were both decided prior to the effective date of the 1989 amendment. In Mitchell, supra, and Grable, supra, our supreme court reversed the appellants' convictions when the arresting officer was not qualified. In both cases, the reversal rested upon the fact that the citations on which the convictions were based were issued by non-qualified officers. In Barnes v. State, 305 Ark. 428, 810 S.W.2d 909 (1991), our supreme court recognized that the arguments made in Mitchell and Grable no longer compel reversal in light of the 1989 amendment.

However, even before the 1989 amendment, our supreme court held that section 12-9-108(a) does not demand application of the exclusionary rule. In Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990), the appellant was arrested by an officer who did not meet the qualifications of the Commission on Law Enforcement Standards. He argued that all evidence gathered after his arrest should have been suppressed based on Arkansas Code Annotated section 12-9-108(a). The supreme court stated that the language "shall be held as invalid" does not indicate that the exclusionary rule should be applied. Id. The court noted that the purposes of this statute and the exclusionary rule were different and that there was no police misconduct on which to base the application of the exclusionary rule when not mandated by the statute. Id.

The Moore rationale applied in interpreting section 12-9-108(a), as it read prior to the 1989 amendment, is just as applicable to section 12-9-404, which currently contains thesame "shall be held as invalid" language. Section 12-9-404 merely provides that, despite the 1989 amendment to section 12-9-108(a), the specific act of radar activity being conducted by an officer unqualified to do so shall be held invalid. The purpose of the exclusionary rule is to deter unlawful police conduct. Moore, supra. The purpose of section 12-9-404 is to deter radar activity by those unqualified to engage in such activity. This purpose was served by the limitation of Officer Bradley's testimony to his estimation of speed of Konecny's vehicle rather than relying on the results of his unqualified radar activity. While the radar results were invalid as evidence of speeding, the invalidity does not mandate exclusion of evidence obtained pursuant to the stop.

The relevant inquiry here is whether the officer had probable cause to believe that the defendant was committing a traffic offense at the time of the initial stop. Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Id. 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. In reviewing a ruling denying a defendant's motion to suppress, we make an independent determination based on the totality of the circumstances and view the evidence in the light most favorable to the State. Id. We reverse only if the trial court's ruling is clearly againstthe preponderance of the evidence. Id.

Regardless of whether the invalid radar verification can constitute probable cause to stop a vehicle, in this case there was other evidence sufficient to constitute probable cause. Officer Bradley visually observed Konecny's vehicle and estimated that it was traveling in excess of the speed limit. Officer Bradley further testified that he observed Konecny's vehicle "make a big, hard swerve to my right, the vehicle's left, for a lane. The vehicle went into the oncoming lane of travel [and] then came back." He stated that the reason for the initial stop was Konecny's speeding as determined by radar and weaving across the lane. He then testified, however, that the reason for the stop was for speeding.

The officer's credibility as to the reason for the initial stop was for the trial court to determine. See Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998). These 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, and thus constituted probable cause. Accordingly, we affirm the circuit court's denial of the motion to suppress.

Affirmed.

Griffen and Baker, JJ., agree.