John Leslie Shultz v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION III

JOHN LESLIE SHULTZ

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-230

December 4, 2002

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. CR01-1511]

HONORABLE WILLIAM A. STOREY,

CIRCUIT JUDGE

AFFIRMED

Appellant John Leslie Shultz appeals his conviction for second-offense driving while intoxicated. For reversal, appellant argues that the trial court erred in not suppressing evidence from both the field-sobriety and the breathalyzer tests because they were the results of an illegal arrest by a second officer who was called to the scene by the officer who initiated the stop. We disagree and affirm.

The following facts surrounding the arrest were stipulated at trial. On January 19, 2001, appellant was driving east on Highway 45 within the city limits of Fayetteville. Officer Pool of the Fayetteville Police Department began following appellant's vehicle after he observed the vehicle cross the center line but was unable to ascertain whether or not the violation was caused by the appellant entering the roadway. Pool continued to follow the vehicle beyond the city limits, and when appellant's vehicle crossed the center line a second time, he initiated a traffic stop. Following the stop, Pool requested the assistance of Officer

Swanfeld, a DWI enforcement specialist with the Fayetteville Police Department. Upon Swanfeld's arrival at the scene, he had appellant perform field-sobriety tests. Thereafter, he arrested appellant and transported him to the Fayetteville city jail where appellant was incarcerated following a breathalyzer test indicating that he had a .17 blood-alcohol content.

Following his conviction in municipal court, appellant appealed to the circuit court where the case was tried on the stipulated facts. The circuit court denied appellant's motion to suppress the results of the tests and found him guilty of second-offense driving while intoxicated. From that order comes this appeal.

In reviewing the trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the court's ruling was clearly against the preponderance of the evidence. State v. Fountain, __ Ark. __, __ S.W.3d __ (October 31, 2002); Thomas v. State, 65 Ark. App. 134, 137, 985 S.W.2d 752, 753 (1999); King v. State, 42 Ark. App. 97, 854 S.W.2d 362 (1993). It is well settled that in cases involving the legality of an arrest, "all presumptions are favorable to the trial court's ruling on the legality of the arrest, and the burden of demonstrating error rests on the appellant." Efurd v. State, 334 Ark. 596, 600, 976 S.W.2d 928, 931 (1998).

Appellant argues that the trial court erred by not suppressing evidence of the field-sobriety tests performed by Swanfeld and the results of the breathalyzer test because they were the products of an illegal arrest. Appellant contends that the circumstances surrounding the arrest by Swanfeld did not provide a recognized basis that justified an arrest by an officer outside his territorial jurisdiction. In particular, appellant notes that Swanfeld was not infresh pursuit of appellant.

This court has held that there are four instances where officers may arrest outside their territorial jurisdiction:

(1) when the officer is in fresh pursuit; (2) when the officer has a warrant for arrest; (3) when a local law enforcement agency has a written policy regulating officers acting outside its territorial jurisdiction and when said officer is requested to come into the foreign jurisdiction; and (4) when a sheriff in a contiguous county requests an officer to come into his county to investigate and make arrests for violations of drug laws.

Thomas v. State, 65 Ark. App. 134, 136, 985 S.W.2d 752, 753 (1999).

Appellant states that he "concedes that the initial stop was legal pursuant to Ark. R. Crim. P.[ ] 2.1 and 3.1. In fact, if the first officer [Pool], who had the right to legally stop [a]ppellant, continued on with his investigation, and actually made the arrest, then [a]ppellant admits it would be a legal arrest."1 We hold that because appellant conceded that the initial stop by Officer Pool was legal and he had jurisdiction to arrest appellant under the fresh pursuit exception, Officer Swanfeld also had jurisdiction to arrest appellant.

The Arkansas Supreme Court has held that "an arrest is valid when the arresting officer is accompanied by a duly qualified officer" with jurisdiction to make the arrest. Colston v. State, 346 Ark. 503, 513, 58 S.W.3d 375, 383 (2001) (limited on other grounds). In Colston, supra, Saline County police officers requested the assistance of Pulaski County police officers to apprehend a defendant located in Pulaski County. The Pulaski County officers were on the scene, acting in concert with the Saline County officers in the investigation when the defendant was arrested. The court in Colston relied on the holding in Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979), where a Crittenden County deputy sheriff sought assistance from a St. Francis County deputy sheriff to arrest the defendant while he was in St. Francis County. See Colston, supra, at 512, 58 S.W.3d 382.

Although in Colston and Logan the arresting officers were accompanied by officers from the jurisdiction where the arrest occurred, the holdings of these cases stand for the proposition that the presence of an officer with full authority to make the arrest legitimizes the arrest. In the present case, appellant does not dispute that Pool was at the scene when the arrest occurred. Therefore, we hold that once appellant conceded that the initial stop by Pool was legal, Swanfeld's jurisdiction to arrest appellant was legitimized. Under the circumstances of this case, we cannot say the trial judge erred in denying appellant's motion to suppress.

Affirmed.

Stroud, C.J., and Roaf, J., agree.

1 Furthermore, the following colloquy occurred between the trial judge and defense counsel:

The Court: Now, there was an issue in the Municipal Court as to the propriety of the stop as it relates to being made outside the city limits of Fayetteville, which presented a pursuit issue. And I take it from the Stipulated Facts that I have ... that's no longer an issue. Is that correct?

Mr. Huggins [Defense Counsel]: That is correct, Your Honor.