Zachary Charles Jordan and Lashondra D. Click v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

ZACHARY CHARLES JORDAN AND LASHONDRA D. CLICK

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR03-656

May 5, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO.CR2002-3354]

HON. TIMOTHY D. FOX,

JUDGE

REVERSED AND REMANDED

John Mauzy Pittman, Judge

The appellants in this criminal case were charged with simultaneous possession of drugs and firearms, possession of a controlled substance with intent to deliver, and possession of a controlled substance. Appellants filed a motion to suppress evidence obtained in a warrantless search of an automobile owned by appellant Zachary Jordan, alleging that the search violated the Fourth Amendment. After the trial court denied the motion, both defendants entered conditional guilty pleas, and this appeal followed. For reversal, appellants contend that the trial court erred in denying the motion to suppress because the police officer who executed the search did not have a reasonably articulable suspicion that either of the appellants had committed or were about to commit a crime. We reverse and remand.

In determining the propriety of the denial of a motion to suppress, 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. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). Viewed in light of this standard, the record reflects that appellants were seated in a parked automobile in a large parking lot near the Splash Car Wash. Several other people were in the parking lot and in a nearby warehouse-like building. A Little Rock Police Department SWAT team investigating narcotics trafficking at the car wash arrived on the scene. As the SWAT team approached the car wash, several people fled and were pursued on foot by officers. Appellants remained stationary in the vehicle and did not flee. Appellants had not been seen interacting with the other people in the vicinity, made no evasive, menacing, or suspicious movements, and were unknown to the police officers. Nevertheless, Officer Collins of the Little Rock Police Department ordered appellants to exit the vehicle, whereupon he patted them down for weapons, requested identification, and searched the vehicle. The search uncovered marijuana, crack cocaine, Ecstasy, and a firearm. After the search was underway,1 a NCIC check revealed that there was an outstanding warrant for appellant Lashondra Click.

The trial court erred in denying appellants' motion to suppress. Rule 3.4 of the Arkansas Rules of Criminal Procedure provides that, if a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous, the officer may search the outer clothing of such person and the immediate surroundings for any weapon. As defined by Ark. R. Crim. P. 2.1, "reasonable suspicion" means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

In making a determination as to reasonable suspicion, the trial court may consider (1) the demeanor of the suspect; (2) the gait and manner of the suspect; (3) any knowledge the officer may have of the suspect's background or character; (4) whether the suspect is carrying anything, and what he is carrying; (5) the manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors; (6) the time of the day or night the suspect is observed; (7) any overheard conversation of the suspect; (8) the particular streets and areas involved; (9) any information received from third persons, whether they are known or unknown; (10) whether the suspect is consorting with others whose conduct is "reasonably suspect"; (11) the suspect's proximity to known criminal conduct; (12) incidence of crime in the immediate neighborhood; (13) the suspect's apparent effort to conceal an article; (14) apparent effort of the suspect to avoid identification or confrontation by the police. Ark. Code Ann. § 16-81-203 (1987). However, the supreme court has held that a person's late-night presence in a known drug area is not, standing alone, sufficient to give rise to such a reasonable suspicion. Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998). Here, as in Stewart, supra, there was nothing about appellants' actions or demeanor that indicated that they were involved in any illegal activity, and the only justification for stopping them was simply that they were "in the wrong place at the wrong time." Id. The Stewart court held that the trial court's finding of a reasonable suspicion under those circumstances was clearly against the preponderance of the evidence, and the same rationale is applicable to this case.

Reversed and remanded.

Stroud, C.J., and Griffen, J., agree.

1 The State asserts that the search of the vehicle occurred after the police learned of the outstanding warrant, but a close reading of the officer's testimony shows that the search was already underway when the NCIC search results were obtained.