Alejandro Gardea v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION I

ALEJANDRO GARDEA

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-926

April 3, 2002

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[NO. CR-2001-58]

HON. DENNIS SUTTERFIELD,

CIRCUIT JUDGE

AFFIRMED

Appellant, Alejandro Gardea, entered a conditional plea of guilty to the charge of possession of a controlled substance with intent to deliver. He was sentenced to a term of 144 months' imprisonment in the Arkansas Department of Correction, with the imposition of an additional sixty months suspended. Appellant raises two points on appeal. First, he contends that the trial court erred in its refusal to suppress the statements he made while sitting in a police car. Second, he argues that the court's failure to suppress the controlled substance discovered in his vehicle is reversible error. We affirm.

On January 18, 2001, appellant and his girlfriend, Amanda Ross, were traveling on Interstate 40 in a rented van. Arkansas State Police Trooper Kyle Drown stopped the van driven by appellant after he observed the van weaving from the left lane to the right lane. Trooper Drown asked appellant to follow him to the police car. Appellant sat in the front seat of the car as Trooper Drown prepared a warning ticket. While in the car, appellant was asked a series of questions. Specificinquiry was made about appellant's criminal history, his relationship with Ross, the travelers' ultimate destination and the circumstances surrounding the van rental. During the conversation, Trooper Drown observed appellant's nervous demeanor and noted several factual discrepancies in his story. Additionally, Trooper Drown asked appellant "if there was any reason why someone would call in on him and say he's carrying some illegal items." Appellant responded that no such reason existed. No such call was received by the state police. Trooper Drown asked Ross the same questions (except the question pertaining to the hypothetical phone call), and received several contradictory answers.

During the stop, Drown noticed an odor of detergent coming from the van; the trooper recognized the smell as an odor used to mask drugs. Trooper Drown requested appellant's permission to search the vehicle; the request was denied. A certified narcotics dog, named Rudy, was in the back of the trooper's patrol car. Rudy was led around the exterior of the van, and alerted on the driver and passenger doors. Trooper Drown then entered the van and searched its interior. He noticed detergent powder and dryer sheets and saw that the screws holding the quarter panel appeared to have recently been installed. Rudy was then placed inside the van, but he did not alert.

Trooper Drown then sought a search warrant. The warrant affidavit omitted the fact that the drug dog did not alert the second time it was led inside the van. However, the warrant was issued, and the van was searched at the police department. The quarter panel was removed with a power drill and cocaine was discovered. Appellant was arrested and charged with possession of a controlled substance with intent to deliver. Appellant sought suppression of the statements he made to Trooper Drown while in the front seat of the patrol car and the substance discovered during the search of his van. Suppression was denied, and appellant entered a conditional guilty plea.

Arkansas Rule of Criminal Procedure 24.3 (b) provides:

(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contedere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

As a general rule, one is not allowed to appeal from a conviction resulting from a guilty plea, aside from jurisdictional defects. Ark. R. App. P.-Crim. 1(a). However, Rule 24.3(b) presents an exception to the rule, but only for the purpose of determining on appeal whether appellant should be allowed to withdraw his plea if it is concluded that the evidence should have been, but was not suppressed. Colston v. State, 346 Ark. 503, 58 S.W.3d 375 (2001). Appellant's guilty plea was conditioned on his right to seek appellate review of the suppression issue. Therefore, we will consider the merits of the appeal.

When this court reviews a trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). We will reverse a trial court's ruling on a motion to suppress only if the ruling was clearly erroneous or clearly against the preponderance of the evidence. Id. Because the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position in this regard. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992).

Appellant first asks this court to suppress statements that he made while sitting in the front seat of Trooper Drown's patrol car. He contends that he was "in custody" for purposes of Miranda, and therefore, because he did not receive a recitation of his rights as required by Miranda, the court should have granted his motion to suppress on this point.

The police have a right to investigate and to ask investigatory questions; warnings are not required if the questioning by police is simply investigatory. Parker v. State, 258 Ark. 880, 529 S.W.2d 860 (1975); Bohanan v. State, 72 Ark. App. 422, 38 S.W.3d 902 (2001). Police inquiry is purely investigatory and proper until the suspect is restrained in some significant way. Miranda v. Arizona, 384 U.S. 436 (1965); Parker v. State, supra. Additionally, the Supreme Court has held that an officer's subjective and undisclosed view concerning whether a person being interrogated is a suspect is irrelevant to an assessment of whether the person is in custody for Miranda purposes. Stansbury v. California, 511 U.S. 318 (1994).

The applicability of Miranda to traffic stops was discussed by our supreme court in Manatt v. State, 311 Ark. 17, 842 S.W.2d 845 (1992). The court held:

In Berkemer v. McCarthy, 468 U.S. 420 (1984), the United States Supreme Court held that persons temporarily detained pursuant to a routine traffic stop are not "in custody" for purposes of Miranda. The Court reasoned that Miranda warnings were not required in such cases because the stop was temporary, it was public, and the atmosphere on a public street is not comparable to the "police dominated" custodial interrogation. The Court held that a motorist who is detained pursuant to a traffic stop is entitled to recitation of his rights only when the stop becomes such that he is "subjected to treatment that renders him `in custody' for practical purposes."

Id. at 29, 842 S.W.2d at 852.

Here, appellant's remarks were not volunteered and spontaneous but the result of questioning, so the issue becomes whether, under the circumstances, the questioning would be deemed a custodial interrogation. Of specific importance is the fact that the questioning took place while appellant was sitting in Trooper Drown's patrol car. Our supreme court has recognized that interrogation in a police car is considered a significant factor in finding an individual under custodial interrogation. Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985).

In Shelton, the police were investigating the death of an officer who had been executed as he happened upon a burglary in progress. Shelton, who was only seventeen years old at the time of the incident, and Gene Emfinger, age fourteen, lived in a bunkhouse of a dairy farm with thesuspects in the officer's murder. Using a public announcement system, the police rousted Shelton and Emfinger from the bunkhouse at 2:30 a.m. The two boys took ten to fifteen minutes to answer the door, because they claimed to be so scared that they were hiding in a closet. The officers explained to them that an officer had been killed and inquired if they knew the suspects' whereabouts. The officers then asked the boys to show them where their parents lived. Once the patrol car arrived at Shelton's residence, one of the officers and Emfinger got out the car, and the other officer stayed in the car with Shelton. While they were waiting in the car, the officer stressed the seriousness of the crime to Shelton, and urged him to tell anything he knew. Then tears came to Shelton's eyes and he stated "we did it, we did it, we were there." The officer then called in that "we have a witness" and then gave Shelton his Miranda warning. On appeal, the supreme court suppressed the statement, finding that it had resulted from a custodial interrogation. In reaching this conclusion the court relied heavily on two factual elements: 1) Shelton's age; and 2) the fact that the inquiry took place inside of the police car.

In the case at bar, appellant, like Shelton, was asked questions while sitting in a police car. However, this factual similarity is not an adequate basis to warrant suppression. Unlike Shelton, appellant was twenty-nine years old and this was a routine traffic stop. Additionally, the inquiry was not focused on a particular crime. Appellant was asked to sit in the car while Trooper Drown prepared a warning ticket. As the officer prepared the ticket, he engaged in a conversation with appellant, and asked him very routine questions. The facts do not suggest that appellant was a suspect in a particular crime or subject to the sort of police "dominance" that would indicate a custodial interrogation.

The events of appellant's brief detention better fit the scenario contemplated by the United States Supreme Court in Berkemer, supra, where the court reasoned that a person receiving a trafficcitation would presumably be free to leave after the ticket had been issued. Therefore, based upon the totality of the circumstances, we cannot say that the trial judge's denial of appellant's motion to suppress the statements made while Trooper Drown prepared a warning citation was clearly against the preponderance of the evidence.

Next, appellant contends that Trooper Drown did not have reasonable suspicion to detain him (after the warning ticket was issued) or to conduct the canine search of the van's exterior. Our supreme court has recently given clear guidance regarding reasonable suspicion arising during a valid traffic stop. In Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001), the court concluded:

[T]he police officer may detain the offending motorist while the officer completes a number of routine but somewhat time-consuming tasks related to the traffic violation, such as a computerized check of the vehicle's registration and the driver's license and criminal history, and the writing up of a citation or warning. During the process, the officer may ask the motorist routine questions such as his destination, the purpose of the trip, or whether the officer may search the vehicle, and he may act on whatever information is volunteered.

347 Ark. at 157-58, 60 S.W.3d at 474-5. The court specifically noted that the background check revealed a conviction that Laime had lied about, and Laime and his passenger could not identify their destination or the names of the friends they were allegedly meeting. The court held that these facts led to the officer's valid reasonable suspicion and justified a canine search.

Important to the determination of the validity of appellant's claim that the officer did not have the requisite "reasonable suspicion" is the officer's testimony regarding appellant's nervous demeanor and his refusal to make eye contact with the officer. Further, appellant and his passenger both denied ever being arrested, despite NCIC reporting that each of them had a positive criminal history. Appellant told the officer that Tampa was his destination, and Ross first stated she did not know where they were going, but then said they were going to Miami. Appellant said that he and Ross had been dating for a year, while Ross marked the term of their relationship at two months. Finally, appellant said he rented the van on the 16th, despite the fact that the rental agreement showed the van had been rented on the 15th. Therefore, we hold that Trooper Drown had reasonable suspicion to detain appellant after the original warning ticket had been issued.

Furthermore, no reasonable suspicion was required for Trooper Drown (who had a police dog at his immediate disposal) to conduct the canine sniff of appellant's van. In Willoughby v. State, 76 Ark. App. 329, 65 S.W.3d 453 (2002), our court held that when an officer has a police dog at his immediate disposal, a motorist's detention may be briefly extended for a canine sniff of the vehicle in the absence of reasonable suspicion, without violating the Fourth Amendment.

Next, appellant attempts to make issue of the fact that the dog did not alert on the interior of the van, and that Trooper Drown omitted this fact from his affidavit for a search warrant. However, the fact that the dog alerted on the outside of the van is sufficient probable cause to search the vehicle. Willoughby, supra; Newton v. State, 73 Ark. App. 285, 43 S.W.3d 170 (2001). Once the dog alerted on the van and probable cause to search the vehicle was established, any asserted defect in the affidavit for a search warrant is of no moment. See Laime, supra. Additionally, the fact that the officer discovered fabric softener and detergent in the van's interior, coupled with the fact that these substances are used to mask the odor of drugs, offers a very reasonable explanation for the dog's failure to detect the drug odor once it entered the van.

Finally, appellant asserts that once the officer inspected the interior of the van "the original probable cause was consumed, and it could not justify an additional search without new facts creating probable cause." The "consumption" argument advanced by appellant is cited without any reference to authority, nor is it accompanied by convincing argument; therefore, the issue will not be considered on appeal. Jenkins v. State, 60 Ark. App. 1, 959 S.W.2d 57 (1997).

Affirmed.

Bird and Roaf, JJ., agree.