Grace D. Pool v. City of Fort Smith

Annotate this Case
ar03-686

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR03-686

JUNE 16, 2004

GRACE D. POOL AN APPEAL FROM THE SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT [MC-2002-76]

v.

HONORABLE J. MICHAEL FITZHUGH, JUDGE

CITY OF FORT SMITH

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellant entered a conditional plea of guilty to driving while intoxicated (DWI), first offense. On appeal, she asserts that the results of the field sobriety tests should have been excluded because the police lacked probable cause to stop and arrest her for driving while intoxicated. Because there was no error, we affirm.

The facts are as follows. In the early morning hours of April 14, 2002, State Trooper Don Smith observed two vehicles traveling north on Towson Avenue in Fort Smith. He noticed that the pickup truck, being driven by appellant's friend1, along with appellant's vehicle, were traveling "at a very, very slow speed[.]" Smith testified that the speed limit on Towson Avenue is approximately forty miles per hour and that the vehicles were traveling at about fifteen miles per hour. In fact, Smith stated that the vehicles were traveling so slow that the traffic behind them had to go around. Smith, given his DWI detection training, noted that slowness of speed is one of the facts he might look for in a suspected DWI. Smith observed the pickup truck leave its lane and travel into the next repeatedly. Appellant's vehicle was approximately one car length behind the truck, and although appellant did not cross into the left lane, Smith observed her weaving from "the curb area to the center." Smith testified:

It drew my attention with her vehicle so close to his [that] if [he] stopped abruptly she could have run into the back of his vehicle. The way he was weaving back and forth I was unsure what was going on between these two vehicles. . . . I continued to observe the same thing until I go[t] somewhat close to the flea market and Curt's Oil Company. I was waiting until I had an area to where I could stop both vehicles. I wanted to get both vehicles to stop because of the violations of both vehicles. It was my suspicion at that time that they were possibly intoxicated drivers. So I waited until we got to an area to where I could stop both vehicles and I turned my lights on. . . . It looked like a hazardous situation for both of them.

The pickup truck turned into the flea market, barely pulling off the street, while appellant kept going and finally pulled into Curt's Oil Company. Smith testified that, while he was making contact with the driver of the pickup, he continued to watch appellant. Once he placed that driver under arrest, he drove to Curt's Oil Company where appellant was standing outside of her car. Thereafter, Smith placed appellant under arrest as well. Appellant entered a conditional guilty plea to driving while intoxicated, first offense. She was sentenced to thirty days' incarceration in the Sebastian County Adult Detention Center and ordered to pay a $550 fine and $305 court costs. She reserved her right to bring this appeal, pursuant to Ark. R. Crim. P. 24.3.

In reviewing the denial of a motion to suppress evidence, the appellate court makes an independent examination based upon the totality of the circumstances and reverses 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). A determination of the preponderance of the evidence depends heavily on questions of credibility and weight to be given testimony, and the appellate court defers to the superior position of the trial court on those questions. Id.

In order for a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Miller v. State, 81 Ark. App. 401, 102 S.W.3d 896 (2003). Probable cause is defined as facts or circumstances within a police officer's knowledge that aresufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Id. In assessing the existence of probable cause, appellate review is liberal rather than strict. Id. Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation that the officer believed to have occurred. Id.

Appellant asserts that the trial court's reliance on Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994) is misplaced and that the more relevant case to the matter at hand is Barrientos v. State, 72 Ark. App. 376, 39 S.W.3d 17 (2001). In Piercefield, supra, the court determined that the arresting officer had a reasonable suspicion to stop the appellant because the officer, at a late hour, observed the appellant weaving from the centerline to the shoulder of the highway and speeding. Pool asserts that because the officer only observed her "weaving in her lane" and did not observe her "leaving her lane" as was observed in Piercefield, he lacked probable cause to stop her. In making this assertion, she relies on Barrientos, supra, in which the court determined that the officer, who was concerned that the driver was sleepy, lacked probable cause to stop a vehicle when he observed the driver weaving within his own designated lane, which was not a traffic violation. Appellant's argument is unconvincing.

Although the officer did not testify that appellant left her lane, he nevertheless observed other violations that justified the stop. In addition to weaving inside her lane, Smith testified that not only was appellant driving too closely, but she was also driving very slowly. Pursuant to Arkansas Code Annotated section 27-51-305 (Supp. 2003), "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of vehicles and the traffic upon and the condition of the highway." (Emphasis added.) Furthermore, under Arkansas Code Annotated section 27-51-208(a) (Repl. 1994), "[n]o person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when the reduced speed is necessary for safe operation and in compliance with the law." Here, Trooper Smith saw Pool driving too close to the car in front of her, even though she was one car length behind. Smith testified that appellant's vehicle was traveling so close to the truck in front of her that, if it would have stopped abruptly, she could have run into the back of the pickup truck. Additionally, Smith testified that the two drivers were impeding traffic. They were driving so slowly that other cars had to change lanes to get around them. Therefore, based upon the totality of the circumstances, we affirm.

Affirmed.

PITTMAN and BAKER, JJ., agree.

1 Appellant's friend was also arrested for driving while intoxicated, but he is not involved in this appeal.