Roland Garcia Jordan v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

ROLAND GARCIA JORDAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-837

APRIL 30, 2003

APPEAL FROM THE PULASKI COUNTY COURT

[NO. CR 2001-4085]

HONORABLE JOHN W. LANGSTON, JUDGE

AFFIRMED

The Pulaski County Circuit Court convicted the appellant, Roland Garcia Jordan, of possessing cocaine and sentenced him to five years' probation and payment of a $250 fine. On appeal, he argues that the trial court erred by denying his motion to suppress. We affirm.

On March 26, 2002, just before the beginning of appellant's criminal trial, the trial court held a hearing to decide appellant's motion to suppress. At the suppression hearing, North Little Rock Police Officer Robert Maxwell testified that on October 18, 2001, he was on routine foot patrol in the Dixie East Addition of North Little Rock. He described the area as "a bad neighborhood," specifically, that his department "answer[s] numerous calls on a regular basis regarding violence, domestic, shootings, stabs, a lot of narcotics." Furthermore, he stated that there had been "two homicides late this [past] summer in that

area[,]" includinga murder on the same block and street just two months before and another homicide two blocks away. He testified that his department had arrested people in that area for narcotics sales, that there had been several stabbings and incidents of domestic violence in the immediate area, and that he had personally recovered several stolen vehicles in the area "on just about every street."

While patrolling, Officer Maxwell saw Brian McMiller. Officer Maxwell was familiar with McMiller, and the officer had personally arrested McMiller on several occasions for narcotics violations. He also was aware that warrants for McMiller's arrest for narcotics violations had been issued and that McMiller had been involved in several incidents in which he was armed. When Officer Maxwell saw McMiller, McMiller immediately turned and ran toward his house. Officer Maxwell chased him, but McMiller ran into his house and slammed the door.

Meanwhile, other officers, including North Little Rock Police Detective Brent Carmical, arrived on the scene. Appellant was standing outside McMiller's house, leaning into a car. Detective Carmical approached appellant and asked him general questions about McMiller's identity while another officer ran the license-plate number on the car and learned that it had been reported stolen. Detective Carmical testified that, as he and appellant spoke, he noticed that appellant was "extremely nervous towards police presence." Carmical stated that in response to general questions about McMiller's identity, appellant "was looking . . . with his eyes as a possible avenue of escape." Appellant also "had his hands in and out of his pockets[.]"

When the officers learned that the car in which appellant was leaning was stolen, and considered appellant's behavior, Detective Carmical decided to conduct a pat-down of appellant's outer clothing. During that search, Detective Carmical's "hands came across [appellant's] right front watch pocket. And as I was doing the pat search, I . . . felt . . . what appeared to be a rock inside his right watch pocket and the presence of like a paper or some type of enclosure holding that rock substance." He testified that, in his experience and from arresting other people for narcotics violations, subjects hide crack cocaine in their watch pockets. Specifically, he testified, "Its been my experience in the past that a rock substance in that right watch pocket is known to be crack cocaine."

On appeal, appellant contends that the trial court erred in denying his motion to suppress the cocaine that Detective Carmical seized from him because, at the time the detective searched appellant, the detective lacked reasonable suspicion to believe that appellant was armed and presently dangerous. The Arkansas Supreme Court recently clarified the standard of review in cases involving the review of a motion to suppress evidence. See Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Id. When the record is silent regarding the trial judge's findings, the appellate court presumes that the trial judge made all the findings necessary to support the action taken. Coon v. State, 76 Ark. App. 250, 65 S.W.3d 889 (2001). In conducting a clear-error review on factual issues, we defer to a trialcourt's resolution of conflicting testimony and its assessment of witnesses' credibility. Lamb v. State, 77 Ark. App. 54, 70 S.W.3d 397 (2002).

The trial court determined that no constitutional violation from the initial contact occurred, ruling that the officers "stopped and questioned [appellant] about another offense that was taking place, see if he knew who ran into the house. That was reasonable." The trial court determined that the officers' initial conduct was constitutionally reasonable. We agree.

Police-citizen encounters have been categorized into three tiers.

First, there are communications between officers and citizens that are consensual and involve no coercion or restraint of liberty. Such encounters are outside the scope of the Fourteenth Amendment. Second, there are the so-called Terry-type stops. These are brief, minimally intrusive seizures but which are considered significant enough to invoke Fourth Amendment safeguards and thus must be supported by a reasonable suspicion of criminal activity. Third, there are highly intrusive, full-scale arrests, which must be based on probable cause.

Jefferson v. State, 349 Ark. 236, 244, 76 S.W.3d 850, 854-855 (2002). Law-enforcement officers are permitted "to request information or cooperation from citizens 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." Scott v. State, 347 Ark. 767, 776, 67 S.W.3d 567, 573 (2002).

A person is not seized within the meaning of the Fourth Amendment merely because a law-enforcement officer approaches and asks a few questions. Id. A seizure occurs only when, taking into account all the circumstances, the law-enforcement officers' conductwould have communicated to a reasonable person that he or she was not free to ignore the police presence and go about his or her business. Id. Further it is important to note that the "reasonable person" test presupposes an innocent person. Id. During appellant's initial encounter with Detective Carmical, the detective only sought information from appellant concerning McMiller's identity. The detective asked appellant for information to aid in the investigation of a possible crime. This was merely a voluntary police-citizen encounter, and it falls outside the scope of the protection afforded by the Fourteenth Amendment. See id.

We must consider whether Detective Carmical violated appellant's Fourth-Amendment rights by searching him for weapons. We note that Detective Carmical unequivocally testified that the pat-down search was not incident to appellant's arrest. However, the detective stated that he "was doing a pat-down search for weapons" when he found contraband on appellant. A law-enforcement officer who reasonably believes that a person may be presently armed and dangerous may conduct a brief search of that person's outer clothing for weapons. Davis, supra. The standard for judging the officer's reasonableness is whether a reasonably prudent person in the circumstances would be warranted in the belief that his safety or the safety of others was in danger. Id.

In this particular instance, the trial court heard testimony that the Dixie East Addition of North Little Rock was the site of numerous violent crimes and narcotics violations, that appellant displayed extreme nervousness and evasive behavior, and that he kept putting his hands in and out of his pockets. From these facts, the State suggests that a reasonable person would be justified in the belief that appellant might have been armed and dangerous. Id. (explaining that evidence of presence in high-crime area, nervous and evasive behavior, and putting hands in pockets may give rise to a reasonable suspicion supporting pat-down for weapons); Jefferson, supra, (finding that presence in high-crime area, nervous behavior, attempt to evade police, and placing hand in pocket can gave rise to a reasonable suspicion supporting pat-down for weapons).

Here, we believe that based upon the testimony presented at trial, a reasonable person would have considered appellant to be armed and dangerous. Appellant displayed extreme nervousness at police presence, and, in the words of Detective Carmical, kept darting his eyes as though he were looking for an avenue of escape. Appellant was present in an area that had an extremely high crime rate, including numerous crimes of violence, homicides, and narcotics trafficking. See Illinois v. Wardlow, 528 U.S. 119 (2000) (noting the presence in a high crime area and nervous, evasive behavior are pertinent factors in determining reasonable suspicion). Furthermore, appellant was outside the home of a person whom the police were trying to arrest pursuant to warrants for narcotics violations and leaning into a stolen car parked outside the home.

In sum, appellant's demeanor, his presence in an area known for narcotics trafficking and numerous crimes of violence, and his apparent association with McMiller - himself a person known to traffic drugs and possess weapons - gave rise to a reasonable suspicion that appellant was armed and dangerous. Therefore, we cannot say that the trial court's decision to deny appellant's motion to suppress was clearly erroneous on this basis.

During the pat-down, Detective Carmical felt in appellant's watch pocket a rock and"the presence of like a paper or some type of enclosure holding that rock substance." He testified that, in his experience from arresting other people for narcotics violations, subjects hide crack cocaine in their watch pockets, and he seized the rock, which turned out to be crack cocaine. The trial court found that Detective Carmical's actions were reasonable because the incriminating nature of the rock was immediately apparent. Under the "plain-feel doctrine," when a law-enforcement officer, who is justified in conducting a pat-down search for weapons, encounters an item whose incriminating nature is immediately apparent, he or she may seize that item. Minnesota v. Dickerson, 508 U.S. 366 (1993). This is so because "if a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons." Id. at 375.

Based upon the foregoing reasons, we hold that the trial court did not err in denying appellant's motion to suppress.

Affirmed.

Stroud, CJ., and Robbins, J., agree.