Anthony Richardson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ANTHONY RICHARDSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-107

December 3, 2003

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

CR-2002-98

HON. ROBERT EDWARDS, JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Anthony Richardson entered conditional guilty pleas to possession of cocaine with intent to deliver and possession of marijuana with intent to deliver and was sentenced to forty years in the Arkansas Department of Correction. On appeal, appellant challenges the circuit court's denial of his motion to suppress, asserting that the trial court erred in finding that Officer Wilson had reasonable suspicion to detain him, and that the time limit of the detention exceeded that set forth in Rule 3.1 of the Arkansas Rules of Criminal Procedure. We affirm.

On February 7, 2002, at approximately 2:29 a.m., Officer Brandon Wilson, a canine handling officer with the Bald Knob Police Department, conducted a vehicle stop of the car in which appellant was a passenger as it was traveling northbound on Highway 67/167. The reason for the traffic stop, which is not challenged by appellant, was a cracked rear passenger taillight.

Officer Wilson approached the vehicle and advised the driver, Anthony Malone, of the reason for the stop and asked for his registration and insurance. The car was registered in the name of Eddie Carter; however, the occupants of the car were Malone, appellant, and Malone's niece, Natasha Malone. Malone did not produce a valid driver's license, but a paper identification from Texas. He did provide proof of insurance showing that appellant had insurance on the vehicle. Officer Wilson had to ask Natasha Malone for her identification twice and appellant for his identification three times. He then returned to his patrol car to run warrant checks on all three passengers; no outstanding warrants were discovered.

Officer Wilson returned to the stopped vehicle and asked Malone to come back to the patrol car while he wrote out a warning ticket. There is testimony that Malone, while in the patrol car, was shaking uncontrollably, answered questions only in a whisper, and would not make eye contact when Officer Wilson inquired as to his destination. He stated that they were headed to his niece's aunt's house in Arkansas, but he was unable to provide details of the destination and stated he did not know the way there. Apparently Officer Wilson did not inquire further about these statements with Natasha Malone. Officer Wilson then asked Malone for permission to search the vehicle. Malone indicated that he could not consent because it was appellant's vehicle. A constable, who was riding with Officer Wilson, took Malone to the back of the patrol car while Officer Wilson was talking with appellant. Appellant never made eye contact during the conversation and denied his consent when asked if the vehicle could be searched.

Officer Wilson then conducted a canine sniff of the car, using the police dog that was riding in the car with him at the time of the traffic stop. When the dog alerted on the rear of the car, Officer Wilson searched the vehicle and discovered cocaine and marijuana.

At the suppression hearing, appellant argued that Officer Wilson had no reasonable suspicion to detain him, and that the duration of the detention exceeded the time limit provided in Ark. R. Crim. P. Rule 3.1. Appellant's motion was denied.

When we review a denial of a motion to suppress the evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. Simmons v. State, __ Ark. App.__, __ S.W.3d __ (Sept. 17, 2003). We reverse only if the decision is clearly against the preponderance of the evidence. Hilton v. State, 80 Ark. App. 401, 96 S.W.3d 757 (2003). Because the determination of the preponderance of the evidence turns on questions of credibility and the weight to be given the testimony, we defer to the trial judge's superior position in this regard. Reeves v. State, 80 Ark. App. 61, 91 S.W.3d 97 (2002).

A. Reasonable Suspicion

In the instant case, Officer Wilson made a traffic stop because the vehicle in which appellant was riding had violated a traffic law, specifically a defective taillight. Appellant does not challenge the validity of the original stop. During the course of this valid traffic stop, Officer Wilson learned that: (1) the car was not registered to any of the occupants therein; (2) insurance on the vehicle was maintained in the name of appellant; (3) Malone, the driver, had a paper identification from the state of Texas rather than a valid driver's license; (4) Malone did not know the city or address of their purported destination; (5) both Malone and appellant were acting nervous. In addition to these factors and the late hour of the traffic stop, Officer Wilson also had to ask repeatedly for identification from appellant and the other passenger. Moreover, after Officer Wilson wrote out a warning citation, Malone became nervous when Officer Wilson asked whether he could search the vehicle. When consent was again denied by appellant, Officer Wilson walked his canine around the vehicle, and the dog alerted near the trunk of the vehicle.

Appellant argues that the nervousness, refusals to consent to search, and repeated requests for identification were insufficient bases to establish reasonable suspicion to detain appellant. Appellant cites federal and Arkansas cases finding that it is not uncommon for most citizens, whether innocent or guilty, to exhibit signs of nervousness when confronted by law enforcement officers. See United States v. Beck, 140 F.3d 1129 (8th Cir. 1998); Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); and Miller v. State, 81 Ark. App. 401, 102 S.W.3d 896 (2003). He points to testimony regarding the very cold temperatures to account for the passengers' shaking and perceived nervousness. Appellant also maintains that the refusal to consent cannot be the sole basis for probable cause to search. See United States v. Hyppolite, 65 F.3d 1151 (8th Cir. 1995). Finally, appellant contends that although there are numerous likely justifications for his not responding to Officer Wilson's requests for identification, he was not required to provide the information absent reasonable suspicion of his involvement in criminal activity at the time of such request. See Illinois v. Wardlow, 528 U.S. 119 (2000). This argument is without merit, especially considering that Malone had provided Officer Wilson with proof of insurance on the vehicle under appellant's name. It was reasonable for Officer Wilson to have inquired further on that issue if for no other reason.

Our supreme court has recognized that as part of a valid traffic stop, a police officer may detain a traffic offender while he completes certain routine tasks. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). Such a detention has been found to be unrelated to a Rule 3.1 detention. Id. The supreme court in Laime specifically set forth the Eighth Circuit Court of Appeals' analysis regarding a permissible detention associated with a valid traffic stop:

[H]aving made a valid traffic stop, the 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 computerized checks of the vehicle's registration and the driver's license and criminal history, and the writing up of a citation or warning. See United States v. Carrazco, 91 F.3d 65, 66 (8th Cir. 1996). During this 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.

Id. at 157-158, 60 S.W.3d at 474-475 (quoting United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir. 1999)). Routine questioning and the criminal-history check appear to be precisely what Officer Wilson engaged in as part of a valid traffic stop.

Appellant emphasized at oral argument that there was a distinct break between the issuance of the warning ticket and the decision to search the vehicle, which would require a Rule 3.1 analysis completely separate from the Fourth Amendment analysis. We disagree. No reasonable suspicion was required for Officer Wilson, who had his police dog at his immediate disposal, to conduct the canine sniff of the vehicle. 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. This was recently reiterated in Miller v. State, supra, where this court held that a canine sniff of the exterior of avehicle does not amount to a Fourth Amendment search. Moreover, once a canine alerts, an officer has probable cause to suspect the presence of illegal contraband. Id.

B. Length of Detainment

Rule 3.1 (2003) of the Arkansas Rules of Criminal Procedure deals with the stopping and detention of a person and the associated time limit, and reads as follows:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer's presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

Appellant argues that because Officer Wilson detained him for longer than fifteen minutes, a violation of Rule 3.1 occurred and accordingly, the evidence discovered should have been suppressed. The State argues that the time limits imposed by Rule 3.1 are not applicable because Officer Wilson had probable cause to make the traffic stop. The State maintains that because the officer had probable cause, the stop was not investigatory in nature as contemplated by Rule 3.1. The State argues that because Officer Wilson did not need reasonable suspicion to conduct the canine sniff that created probable cause to search the vehicle, the time limits of Rule 3.1 are not applicable.

We hold that because the initial traffic stop was valid and Officer Wilson's police dog was at his immediate disposal, the canine sniff and resulting discovery of illegal drugs did not violate Rule 3.1 or appellant's Fourth Amendment rights. The additional time it took for the dog to walk around the car was a minimal intrusion on appellant's personal liberty. Once the dog alerted, this constituted probable cause for Officer Wilson to search the vehicle. Based upon the facts of this case, we cannot conclude that the trial court clearly erred in denying appellant's motion to suppress.

Affirmed.

Hart and Bird, JJ., agree.