David Clay Garrett, IV v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DAVID CLAY GARRETT, IV

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-981

OCTOBER 6, 2004

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[NO. CR2002-318-2]

HONORABLE DAVID S. CLINGER, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, David Clay Garrett, entered a conditional plea to DWI - First Offense, in violation of Ark. Code Ann. § 5-63-103 (Repl. 1997). In accordance with his plea, he challenges the legality of his initial stop and detention alleging that the trial court erred in admitting the evidence and testimony of the police officer who stopped him. We find no error and affirm.

On review of a trial court's decision on a motion to suppress evidence, this court reviews the trial court's factual determinations for clear error and reviews its legal conclusions de novo. Davis v. State, 351 Ark. 406, 412, 94 S.W.3d 892, 895 (2003). The reviewing court defers to the superior position of the trial court to determine the credibility of witnesses and to resolve evidentiary conflicts, but resolves legal questions through an independent determination based upon the totality of the circumstances. Id. at 412-12, 94 S.W.3d at 894-95.

The United States Supreme Court jurisprudence has placed police citizen encounters into three tiers or categories:

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 Fourth 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, 76 S.W.3d 850 (2002); see also United States v. Poitier, 818 F.2d 679, 681-682 (8th Cir.1987). United States v. Hernandez, 854 F.2d 295 (8th Cir.1988); United States v. Wallraff, 705 F.2d 980 (8th Cir.1983).

Jefferson v. State, 349 Ark. 236, 244, 76 S.W.3d 850, 854-55 (2002).

Our supreme court has further explained these three tiers:

Police-citizen encounters have been classified into three categories. See U.S. v. Hernandez, 854 F.2d 295 (8th Cir.1988). The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a "seizure" within the meaning of the fourth amendment. Id. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an "articulable suspicion" that the person has committed or is about to commit a crime. Id. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause. Id.

Jefferson, 349 Ark. at 244, 76, S.W. 3d at 855(additional citations omitted). See also, Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997).

At the suppression hearing, a patrol officer with the Rogers Police Department, Michael Harris, testified that on February 21, 2001, at approximately 2:45 a.m., he was on routine patrol in the city of Rogers. Officer Harris said that he had made arrangements to meet another officer on the grounds of Kirksey Middle School, and while enroute, noticed the appellant's vehicle with its headlights on driving in the soccer field behind the school. Officer Harris described how the vehicle was being operated on the field, moving towards the street. He further testified that he pulled up beside the vehicle on the parking lot as it drove off the soccer field. He directed his spotlight on appellant's vehicle, without turning on his blue lights, in an attempt to identify the occupant or occupants of the vehicle. At that time, appellant's vehicle came to a stop, and, as the patrol car passed appellant's vehicle, both he and appellant rolled down their driver-side windows. Officer Harris asked appellant what he was "doing back there." As appellant explained that he was just looking at the soccer field, Officer Harris noticed that appellant's eyes were red, bloodshot, and watery. At that point, Officer Harris exited his vehicle and requested to see appellant's driver's license. As the officer explained, he was concerned for the safety of the children the next day given the presence of the vehicle on school property at 2:45 a.m. with no discernible reason for its presence.

Appellant argues that a seizure occurred when Officer Harris directed his spotlight on appellant's vehicle and rolled down his window. For a "seizure" to occur, there must be a physical application of force by the officer or submission to the officer's show of force. Smith v. State, 343 Ark. 552, 571, 39 S.W.3d 739, 751 (2001). The State responds that the police officer's initial contact with appellant was of a kind that did not require reasonable suspicion, and, in any case, that requirement was met. We agree that regardless of whether the officer's initial contact with appellant fell within the first or second tier of police encounters, the officer had reasonable suspicion to justifiably detain appellant.

Appellant relies principally upon the Arkansas Court of Appeals decision, Jefferson v. State, 76 Ark. App. 300, 64 S.W. 3 791 (2002), rev'd Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002). In Jefferson, our supreme court reaffirmed the Fourth Amendment implications with regard to certain police-citizen encounters, while finding that the officers in the case had reasonable suspicion to stop and detain Jefferson. The facts there showed that police were patrolling a "high-crime" trailer park in the early morning hours. Jefferson emerged on foot from between two trailers, and when he saw the officers, he appeared startled and immediately changed direction. When the officers called to Jefferson to stop, Jefferson continued walking until one of the officers commanded him a second time to come to the patrol car. When Jefferson turned to walk toward the police car, he slipped his right hand into his pocket; as he got closer to the car, he threw something to the ground. Our supreme court held that these facts rose to a level sufficient to support the officers' suspicion that a crime had been or was about to be committed. Jefferson, supra.

Similarly, the facts in this case rise to a level sufficient to justify the officer's initial contact with appellant. Officer Harris observed appellant driving on a grassy area of a soccer field, coming onto the parking lot, at 2:45 a.m. with no school activity and with no other civilians present. The officer's stated concern was for the safety of the children the next day. Appellant was driving on a soccer field, in an area not designated for vehicular traffic. His presence there was at a time and under conditions whereby he and his activity would not readily be observed or discerned. Officer Harris's concern for the safety of the children at school the next day is consistent with the legitimate state interest of protecting school children in the temporary custody of the State. These circumstances justify a minimally intrusive inquiry by the officer into appellant's activity on the school grounds. Accordingly, we find no error and affirm.

Robbins and Griffen, JJ., agree.