Deryl Williams v. State of Arkansas

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ar04-141

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

DERYL WILLIAMS,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-141

NOVEMBER 10, 2004

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT,

(NO. CR03-323),

HON. DAVID CLINGER, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Deryl Williams was convicted of driving while intoxicated after being found asleep in his truck on September 4, 2002. Williams appeals from the trial court's order and judgment entered against him on October 14, 2003. On appeal, he contends that (1) the trial court erred in denying his motion to suppress evidence because the officer violated his Fourth Amendment right to be free from unreasonable searches and seizures, and (2) the trial court erred in finding that he was in actual control of a vehicle within the meaning of Ark. Code Ann. § 5-65-103(a). We hold that the officer did not violate Williams's Fourth Amendment rights and find that Williams's second point is not preserved for appeal; thus, we affirm.

On September 4, 2002, sometime between 10:45 and 11:00 p.m., police officer Michael Hendrix was patrolling the Motor Inn Motor Home Park in Springdale, Arkansas. The evidence revealed that Williams's truck was parked in front of his trailer. Officer Hendrix testified that, while patrolling the area, he noticed the brake lights on the truck. Hendrix stated that no other lights were on, just the brake lights.

According to his testimony, Officer Hendrix drove by Williams's truck to see if anyone was going to get out of the vehicle and go inside the trailer. Hendrix stated that he noticed Williams inside the truck leaned over against the driver's side asleep. Hendrix testified that, as he drove by, he did not see Williams move or attempt to get out of the vehicle. Hendrix further testified that he then went up to the vehicle and knocked on the window several times, at which point Williams woke up "dazed and startled ... with a confused look on his face." Hendrix said that he asked Williams to open the door or roll down his window, and when Williams opened the door, there was a "strong odor of intoxicants." Hendrix also testified that he noticed Williams's keys "hanging down on the side of the ignition," but that the truck was not running. According to Hendrix's testimony, Williams admitted that he had been drinking. Hendrix then contacted Springdale police officer Justin Ingram, a DWI task force member, and requested his assistance.

On cross-examination, Officer Hendrix explained that he was on routine patrol the night of September 4, 2002, and that he was not responding to any report of illegal activity in the trailer park. Furthermore, Hendrix stated that the truck was parked on Williams's property, that the engine was not running, and that the vehicle was off the road and not on any public street. Hendrix said that at the time he approached Williams's vehicle, he did not know that Williams lived in the trailer or that the truck was Williams's vehicle, but was only checking on Williams's welfare.

The State also presented testimony from Officer Ingram. According to this testimony, when Ingram arrived, Williams was still seated in the truck, the keys were in the truck's ignition, and the truck was not running. Ingram stated that he found several full cans of Mike's Hard Lemonade and one full can of Coors Light beer in a cooler in the back of Williams's truck. Ingram further testified that, as part of the booking, Williams gave his address as 615 North Park in Lockesburg, Arkansas.

On cross-examination, Ingram said that he did not know if the truck had been operated or if it was operational prior to Williams's arrest. Ingram also stated that he did not see Williams drive that evening. It was stipulated that Williams was intoxicated at the time of his arrest.

Williams then testified in his defense, explaining that his actual residence was in Lockesburg, Arkansas, and that he had stayed in his travel trailer at the motor lodge for about a month while working as a construction superintendent. On the night of September 4, 2002, Williams said that he started drinking, went outside to smoke and call his wife, and got into his truck when the mosquitos began to bother him. According to Williams, he proceeded to smoke "another cigarette or so" in the truck and fell asleep.

Prior to trial, Williams filed a motion to suppress certain evidence, contending that Officer Hendrix's confrontation of Williams was not justified under the circumstances. The suppression hearing was held as part of the trial, and, pursuant to a judgment entered against Williams on October 14, 2003, the trial judge denied the motion to suppress and convicted Williams of driving while intoxicated. He was sentenced to a fine of $150, court costs of $300, and one day in jail with credit for time served. Williams now appeals.

Sufficiency of the Evidence

Williams contends that there was insufficient evidence to support his conviction. Because double jeopardy considerations require that we consider a challenge to the sufficiency of the evidence prior to other issues on appeal, we consider this argument first. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).

On appeal, Williams argues that the trial court erred in finding that he was in actual control of a vehicle within the meaning of Ark. Code Ann. § 5-65-103(a). However, Williams failed to make a motion to dismiss based on this argument at the close of the evidence.

Rule 33.1 of the Arkansas Rules of Criminal Procedure provides that, in a nonjury  trial, a motion for dismissal shall be made at the close of all the evidence. Ark. R. Crim. P. 33.1(b). Such a motion must state the specific grounds therefor. Id. If a defendant fails to make such a motion, he or she effectively waives the right to appeal any question pertaining to the sufficiency of the evidence to support the judgment. Ark. R. Crim. P. 33.1(c).

In this case, Williams failed to make a motion for dismissal as required by Rule 33.1 of the Arkansas Rules of Criminal Procedure. Thus, the issue was not preserved for review and we cannot reach the merits of Williams's argument.

Motion to Suppress

Williams also contends that the trial court erred in denying his motion to suppress evidence because the officer violated Williams's Fourth Amendment right to be free from unreasonable searches or seizures. We agree with the trial court that the officer's actions in this case were justified under the circumstances and thus did not violate Williams's Fourth Amendment rights.

When reviewing a suppression challenge, the appellate court conducts 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).

Here, Williams argues that Officer Hendrix's actions were unreasonable under the Fourth Amendment. Williams first cites Anderson v. State, where this court recognized the three categories of encounters between police and private citizens. 79 Ark. App. 286, 86 S.W.3d 403 (2002). Specifically, the court stated as follows:

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. 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. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would not believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause.

Id. at 289, 86 S.W.3d at 405. Williams apparently contends that, because the encounter in this case did not take place on a street but instead on his property, and because it was not "consensual," it amounted to a "search" or "seizure" within the meaning of the Fourth Amendment.

The State, however, argues that nothing in the Constitution prohibits the police from addressing questions to any individual, and that not all personal intercourse between the police and citizens involves "seizures" of persons under the Fourth Amendment. The approach of a citizen pursuant to a policeman's investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government's interest for the intrusion against the individual's right to privacy and personal freedom. Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988). Rule 2.2 of the Arkansas Rules of Criminal Procedure states, in relevant part, that:

A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.

Ark. R. Crim. P. 2.2(a). In Blakemore, we found that a police officer's actions were reasonable in accordance with Rule 2.2 where the officer was patrolling an area during the early morning hours to check for possible break-ins of businesses, found the intoxicated defendant asleep or passed out in his truck which was parked in the area with its lights on and its motor running, and knocked on the window of defendant's truck to question him or make an inquiry. Blakemore v. State, supra. We specifically noted in that case that the officer did not know if the defendant was "ill, drunk, or merely asleep" and that, given the circumstances, the officer's actions were justified as part of his community caretaking function. Id.

Similarly, in this case, Officer Hendrix noticed the brake lights on Williams's truck while on routine patrol in a trailer park. The truck was parked in front of Williams's trailer. According to his testimony, Hendrix drove by the truck to check to see if anyone was going to get out and go inside the trailer. Hendrix stated that he saw Williams leaning over against the driver's side of the truck, and, when he did not see Williams move or get out of the vehicle, he proceeded to knock on the truck's window to check Williams's welfare.

According to Hendrix, when Williams awoke with a confused look on his face, he asked Williams to open the door or roll down the window. At that point, Hendrix said, he smelled intoxicants and called a fellow officer to arrest Williams for DWI.

Given these circumstances, we do not find any error by the trial judge in determining that Officer Hendrix's actions were justified as part of his community caretaking function and thus did not violate Williams's Fourth Amendment rights. We therefore hold that the trial court properly denied Williams's motion to suppress.

Affirmed.

Robbins and Roaf, JJ., agree.