Chester Arthur Sims v. State of Arkansas

Annotate this Case
ar03-351

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CHESTER ARTHUR SIMS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-351

MARCH 24, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FIRST DIVISION, [NO. CR1999-4089]

HONORABLE MARION ANDREW

HUMPHREY, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Chester Arthur Sims was convicted by a jury of third-offense possession of marijuana and was sentenced to ten years in prison. As his sole point for reversal, Mr. Sims argues that the trial court erred in denying his motion to suppress the physical evidence because the stop of his vehicle was illegal. We find no error and affirm.

Officer Bryan Ballard of the Little Rock Police Department testified at the suppression hearing. He stated that he was on patrol duty with Officer Brian Healy at 3:30 p.m. on September 9, 1999. Officer Ballard observed Mr. Sims driving in a Cadillac, and testified that when Mr. Sims saw the police car he "jumped up in the seat and looked straight ahead and acted real nervous." The officers followed Mr. Sims, and Mr. Sims made a right turn at a stop sign of a three-way intersection. According to Officer Ballard, Mr. Sims made the turn without using his blinker. Mr. Sims then pulled immediately into a driveway of a house, as if he almost missed the turn.

During this episode, the officers "ran a check" on appellant's car tags to see if the car was stolen, but got no response. The officers went around the block, and when they came back they observed that appellant was back on the street, with his car stopped behind a school bus. Officer Ballard testified, "We initiated a traffic stop for him not using his turn signal and not getting a return on the tag in the system and the way he was acting. We were wondering what he was doing." After making the stop, Officer Ballard conducted a safety pat-down search and found a bag of marijuana in Mr. Sims's front right pants pocket. Officer Ballard acknowledged on cross-examination that he did not give Mr. Sims a ticket for turning without a signal.

Officer Healey testified that the first thing that attracted them to appellant was his nervousness in driving once appellant saw the patrol car. Officer Healey stated that after appellant noticed them, he sat very erect with both hands on the wheel, and "kept checking us out in the rearview mirror, and that's not something we see every day on the street."

Officer Healey stated that, although Mr. Sims was driving with expired tags, he did not believe that the officers knew this information when they ran a check on the tags, and that this was not their concern. Officer Healey further testified:

The first rule he broke was making a right turn without using a turn signal. That's not what put us on him. What put us on him was the suspicious way he started driving when he saw us. Once he turned without a signal and we made the block, we knew we were going to try to stop him once he pulled back out. We didn't know whether we were going to ticket him or not. We were going to stop him for the right turn violation no matter what.

The trial court denied Mr. Sims's motion to suppress at the conclusion of the suppression hearing, and Mr. Sims now asserts that this ruling was erroneous. Specifically, Mr. Sims argues that the stop of his vehicle was illegal. He maintains that the police lacked a reasonable articulable suspicion that he was engaged in criminal activity, and that when coupled with their urgent desire to explore his activities, this made the resulting encounter and searches unreasonable and in violation of the Fourth Amendment.

Mr. Sims asserts that the testimony of the arresting officers revealed the true reason why they pulled him over. Officer Ballard testified that they stopped appellant in part because of the way he was acting, and stated that while appellant failed to signal a turn, no ticket was issued. Officer Healey was concerned about appellant's nervous behavior, and stated that this was what "put us on him." Under these circumstances, Mr. Sims argues that the stop of his vehicle was pretextual. He acknowledges that there were factors that probably justified a traffic stop, but contends that this does not outweigh the intent of the officers as established by their own testimony. Mr. Sims further asserts that a reasonable officer would not have stopped him for failing to signal a right turn. Mr. Sims argues that because the stop violated his constitutional rights, the marijuana should have been suppressed.

In reviewing a trial court's denial of a motion to suppress 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 trial court. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003). Upon reviewing the facts of the instant case, we conclude that the police had probable cause to stop Mr. Sims's car, and that no constitutional violation occurred. Therefore, the trial court committed no error in denying Mr. Sims's motion to suppress.

In support of his argument on appeal, Mr. Sims relies on State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000), State v. Sullivan, 340 Ark. 318-A, 16 S.W.3d 351 (2000) (supplemental opinion on denial of rehearing), and State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002). However, the appellant's argument fails in light of our supreme court's more recent decision in State v. Harmon, 353 Ark. 568, 113 S.W.3d 75 (2003). Forpurposes of this opinion, the cases cited by appellant will be referred to as Sullivan I, Sullivan II, and Sullivan III.

In Sullivan I, the appellant's vehicle was stopped for traveling forty miles per hour in a thirty-five mile-per-hour zone. After the stop, the police officer discovered other alleged unlawful activity. The officer arrested appellant for speeding, having no vehicle registration or proof of insurance, carrying a weapon (a roofing hatchet), and having an improper tint on his windshield. During a subsequent inventory search, the police discovered incriminating evidence that included methamphetamine.

The trial court granted Sullivan's motion to suppress the evidence discovered during the inventory search, and the State appealed. The supreme court affirmed, quoting the following language from Miller v. State, 44 Ark. App. 112, 114-15, 868 S.W.2d 510, 511 (1993):

The Supreme Court has specifically held that "an arrest may not be used as a pretext to search for evidence." United States v. Lefkowitz, 285 U.S. 452 (1932). ...

. . . .

Claims of pretextual arrest raise a unique problem in law - deciding whether an ulterior motive prompted an arrest which otherwise would not have occurred. Confusion can be avoided by applying a "but for" approach, that is, would the arrest not have occurred but for the other, typically, the more serious crime. Where the police have a dual motive in making an arrest, what might be termed the covert motive may be dominant, so long as the arrest would have been carried out had the covert motive been absent. ...

Applying the above principles to the facts, the supreme court in Sullivan I reasoned:

The question then becomes whether appellee would have been arrested simply for traveling forty miles per hour in a thirty-five mile-per-hour zone and possessing a roofing hatchet that had clearly been in his vehicle for quite a long time, given that it was corroding into the carpet. We find that to be doubtful. His vehicle may have been impounded due to his failure to provide proof of insurance and registration. However, appellee was never charged with having no proof of insurance or vehicle registration. Further, the trial court, when assessing the credibility of Officer Taylor (the sole witness at the hearing), the totality of the circumstances, and the applicable law, agreed with appellee that the search and seizure was pretextual and should be suppressed. Clearly, a review of the applicable law illustrates that the issue of pretext necessarily turns on the facts in a given case, and given our standard of review in these cases, we cannot say that the trial court's ruling was against the preponderance of the evidence.

340 Ark. App. at 318, 11 S.W.3d at 528.

Subsequent to the supreme court's decision in Sullivan I, the State filed a petition for rehearing. The State argued that the supreme court's analysis of the case using the concept of "pretext" was contrary to the Supreme Court's opinion in Whren v. United States, 517 U.S. 806 (1996). In Whren v. United States, supra, the Supreme Court held that the constitutionality of a traffic stop does not depend on the actual, subjective motivations of the individual police officers involved.

In Sullivan II, the supreme court denied the State's petition for rehearing. In its opinion, the supreme court rejected the rationale of Whren, and stated that it was free to grant Sullivan more protection under the United States Constitution than the federal courts have seen fit to provide.

After the decision in Sullivan II, the State petitioned the United States Supreme Court for a writ of certiorari. The Supreme Court granted the petition, and in Arkansas v. Sullivan, 532 U.S. 769 (2001) (per curiam), the Supreme Court reversed the decision in Sullivan II. The Court held that the supreme court could grant Sullivan more protection under state law, but that it could not do so under the federal constitution. The Supreme Court remanded the case for further proceedings.

In Sullivan III, our supreme court again affirmed the trial court's order granting appellant's motion to suppress. Based on the adequate and independent state ground of Article 2, section 15, of the Arkansas Constitution, as well as its own pretextual-arrest decisions, the supreme court held that pretextual arrests, i.e., arrests that would not have occurred but for an ulterior investigative motive, are unreasonable police conduct warranting application of the exclusionary rule.

In the case at bar, Mr. Sims relies on the State v. Sullivan opinions for the proposition that the pretextual stop of his car was unconstitutional. However, we reject his argument pursuant to the supreme court's decision in State v. Harmon, supra.

In State v. Harmon, supra, the appeal presented the issue of whether Sullivan III applies to a traffic stop made for the ulterior motive of searching the defendant's vehicle and the defendant himself for drugs. The supreme court cited Ohio v. Robinette, 519 U.S. 333 (1996), and Whren v. United States, supra, where it was held that a pretextual stop does not violate federal constitutional law. The supreme court stated, "The issue raised in the case before us, however, is whether a pretextual stop is prohibited under the Arkansas Constitution." In reversing in favor of the State, the supreme court held that unlike pretextual arrests, Arkansas common-law jurisprudence does not support invalidation of a search because a valid traffic stop was made by a police officer who suspected other criminal activity. The supreme court stated that, in Sullivan III, a clear distinction was drawn between pretextual arrests and pretextual stops, and that the distinction was made based on the heightened intrusiveness associated with an arrest.

An otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity. State v. Harmon, supra (citing Mings v. State, 319 Ark. 201, 884 S.W.2d 596 (1994)). Thus, in the present case the officers' subjective suspicions did not invalidate the stop. Arkansas Code Annotated section 27-51-403(b) (Repl. 1994) provides, "A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet (100') traveled by the vehicle before turning." Mr. Sims committed a violation for making a turn without a signal, and Officer Healey stated, "We were going to stop him for the right turn violation no matter what." The stop was valid, and pursuant to our supreme court's precedent in State v. Harmon, supra, there was no constitutional violation.

Affirmed.

Pittman and Bird, JJ., agree.