James Nichols v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

JAMES NICHOLS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-96

December 18, 2002

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[NO. CR2001-52]

HON. JOHN S. PATTERSON,

JUDGE

AFFIRMED

The appellant in this criminal case was convicted of possession of a controlled substance and sentenced to a term of imprisonment. His sole contention on appeal is that the trial court erred in denying his motion to suppress evidence obtained as a result of an assertedly illegal stop. We affirm.

The trial court was presented with two starkly contrasting versions of the events surrounding appellant's arrest. The police officer testified that he saw appellant reverse direction upon seeing his patrol car, climb a fence, and walk through a yard to another street. The officer stated that he viewed this behavior as suspicious, drove around the block and, as appellant exited the yard, addressed him by name and asked appellant where he was coming from. The officer further testified that appellant again changed direction and walked

behind the squad car, whereupon the officer (who knew appellant was a felon with a firearm and drug history) exited his car for reasons of officer safety. The officer said nothing to appellant but walked to the rear of the squad car, where he observed appellant throwing crack cocaine on the ground and trying to crush it with his foot. The officer testified that he then arrested appellant for possession of a controlled substance.

A relative of appellant related a much different version of the events. She stated that she viewed the entire incident, that appellant did not climb a fence but merely walked through a common passageway, that the police car "zoomed in on" appellant with squealing tires, that the policeman shouted and exited the squad car, drew his weapon, and began frisking appellant. She also stated that she was sure that appellant did not drop anything on the ground.

In reviewing a trial judge's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding appellant's detention is for the trial judge to determine, and we defer to the trial judge's superior position in determining matters of witness credibility. See id. In the present case, the trial court clearly was called upon to make a credibility determination and chose to believe the police officer's version of events. Furthermore, as the trial court noted, under the police officer's version of the events there was no stop or detention of appellant until the officer observed appellant throwing what appeared to be crack cocaine on the ground. A seizure does not occur simply because apolice officer approaches an individual and asks a few questions, but instead occurs when a reasonable person would not feel "free to leave." Keenom v. State, 349 Ark. 381, 80 S.W.3d 743 (2002). Furthermore, it has been held in the context of consensual public encounters that, even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions, ask to examine identification, and request consent to search, provided they do not convey a message that compliance with their requests is required. King v. State, 77 Ark. App. 70, 72 S.W.3d 109 (2002) (citing Florida v. Bostick, 501 U.S. 429 (1991)). Here, although the police officer spoke to appellant, he did not tell him to halt or otherwise indicate by words or manner that appellant was not free to leave.

Police-citizen encounters have been classified into three categories. The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a "seizure" within the meaning of the Fourth Amendment. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if the officer has an "articulable suspicion" that the person has committed or is about to commit a crime. The initially consensual encounter becomes a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). Arkansas Rule of Criminal Procedure 2.2 authorizes an officer to request information or cooperationfrom citizens in the first class of non-seizure encounter, where the approach of the citizen does not rise to the level of being a seizure and where the information or cooperation sought is in aid of an investigation or the prevention of crime. Id. In the present case, the trial court chose to believe the officer's testimony that appellant attempted to evade the police officer on first contact. The officer's testimony further established that the officer had reasonable suspicion to believe that appellant committed trespass by doing so, because the officer knew where appellant lived and that the fence he climbed and yard he entered were not at his residence. Under these circumstances, we think that Rule 2.2 authorized the officer to make the minimal intrusion involved in merely asking appellant where he was coming from. See Lamb v. State, 77 Ark. App. 54, 70 S.W.3d 397 (2002).

Affirmed.

Griffen and Neal, JJ., agree.