David Michael Salyer v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

DAVID MICHAEL SALYER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-203

December 15, 2004

APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT

[NO. CR-2003-64]

HON. JOHN S. PATTERSON,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

In accordance with Rule 24.3 of the Arkansas Rules of Criminal Procedure, David Michael Salyer entered, in Johnson County Circuit Court, a conditional plea of no contest to a charge of possession of marijuana with intent to deliver. For that offense, he received a sentence of 96 months in the Arkansas Department of Correction, with an additional 48 months suspended. Salyer now challenges the denial of his motion to suppress. He raises two arguments: 1) there was no reasonable suspicion that he committed a traffic violation justifying a stop of his vehicle and the subsequent detention that led to a consensual search; and 2) the search of the vehicle was illegal because the consent he granted was not freely and voluntarily given. We affirm.

At the suppression hearing, Trooper George Summerlin of the Arkansas State Police testified that on March 12, 2003, he was working traffic on Interstate 40 when he noticed a truck with temporary plates. Trooper Summerlin pulled out into the left lane to attempt to read the tag. According to Summerlin, he observed the truck "merge left" into his lane. The trooper stated that he had to apply his brakes and "go to the shoulder." He then observed the truck go back into its lane, which forced "a little car behind him" to avoid the truck by applying its brakes and swerving onto the shoulder. At that point, Summerlin initiated the traffic stop. According to Summerlin, he believed that Salyer's driving constituted one or more violations including "improper lane change, careless driving, and driving inattention."

Summerlin asked the driver, Salyer, for his driver's license, proof of insurance, and documentation for the temporary tag. He returned to his patrol car and ran a driver's license check through dispatch. Summerlin then motioned for Salyer to join him in the patrol car. The trooper asked Salyer where he was going and how long he had been on the road, and Salyer told him that he left his daughter's residence in Tulsa, Oklahoma, at 7:30 that morning, and after stopping at his job at McDonnell-Douglas, he had gotten back on his way. The dispatcher subsequently transmitted over the radio that Salyer had a valid Florida driver's license and that he had been arrested for battery, assault, and carrying a weapon. According to Summerlin, at that point, Salyer became very nervous. He asked Salyer if there were any weapons, bombs, cocaine, or marijuana in his truck, and Salyer answered "no." Summerlin then asked if he could search the truck for these items. After a long pause, Salyer replied, "Yes, but I have to get to Birmingham." Summerlin then picked up the Arkansas State Police consent to search form, filled in the top part, and presented it to Salyer. He then instructed Salyer to initial each of the six sections on the form, answer yes or no in writing as to whether he understood his rights, and sign under a statement that read, "WILL YOU PERMIT THE OFFICER TO CONDUCT THIS SEARCH KNOWING THE POSSIBLE CONSEQUENCES?" The consent form that was introduced into evidence indicates that Salyer initialed and signed the form as instructed.

Summerlin then instructed Salyer to wait outside his vehicle. A short time later, Summerlin joined Salyer, and asked him if he could do a "safety pat down." Salyer consented. Summerlin then asked Salyer to open the fiberglass hatch covering the pick-up truck bed. Salyer pulled the key from his pocket and opened it. Summerlin observed several duffle bags, and he reached into one and found a "hard object." He claimed that when he opened the bag, he detected a strong odor of what he believed was marijuana and saw several bundles wrapped in contact paper.

Salyer largely disputed Summerlin's account of what happened. Regarding his driving, Salyer essentially denied committing a moving violation and ascribed his actions to changing lanes in response to an upcoming construction zone and making an effort to allow Summerlin to pass him. Salyer claimed that Summerlin told him he was going to give him a warning ticket and handed him a piece of paper that he told him to sign. According to Salyer, he thought he was signing the warning ticket, but he had actually signed the consent-to-search form. Salyer also claimed that when Summerlin asked him to open the hatch cover he tried to refuse and only relented after Summerlin told him, "I've got a search warrant."

A video tape of the encounter beginning with the stop was entered into evidence. The trial judge subsequently denied Salyer's motion to suppress. Salyer then entered a conditional plea of no contest and timely filed a notice of appeal.

Salyer first argues that there was no reasonable suspicion that he committed a traffic violation justifying a stop of his vehicle and the subsequent detention that led to a consensual search of his vehicle. He asserts that his driving was proper under the circumstances, and he committed no moving violation. Citing Barrientos v. State, 72 Ark. App. 376, 39 S.W.3d 17 (2001), he urges us to hold that Trooper Summerlin had "no objective facts" that he had committed a traffic violation, and as a result, the initial detention was illegal and his subsequent consent to search was invalid. We disagree.

When we review a trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999). 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. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). Probable cause is defined as facts or circumstances within a police officer's knowledge that are sufficient 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, our 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 which the officer believed to have occurred. Id.

Salyer's argument on this point is unavailing because it fails to fully appreciate the nature of our review. First, his argument requires us to find that he was more credible than Trooper Summerlin. However, it is well settled that we defer to the superior position of the trial court to determine the credibility of the witnesses. Bratton v. State, 77 Ark. App. 174, 72 S.W.3d 522 (2002). Furthermore, the balance of his argument turns largely on whether the trial court should have accepted his characterization of his driving instead of Summerlin's interpretation. However, the issue at bar is not whether he was guilty of a violation, but rather whether the situation as perceived by Summerlin gave rise to a reasonable belief that an offense had been committed. Giving due weight to inferences drawn by the trial court, as we must, see Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003), we hold that the trial court's finding that there was probable cause to make the traffic stop was not clearly erroneous.

For his second point, Salyer argues that the search of his vehicle was illegal as his consent was not freely and voluntarily given and was the result of his acquiescence to lawful authority. He asserts that his consent was "invalidated" prior to his opening the hatch cover over his pick-up truck bed. Furthermore, Salyer claims that he "assumed" he was signing a warning ticket when he was in fact signing the consent to search form. Finally, citing Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980), for the proposition that consent to search must be freely and voluntarily given without any actual or implied duress or coercion, he argues that when he was told to open the hatch back, "he paused and hesitated" and Summerlin "produced the consent form and advised [him] that he had a search warrant," which constitutes an "application of duress and coercion." We find this argument unpersuasive.

When a warrantless search of a vehicle is made by the owner's consent, the State has the burden of showing by clear and positive testimony that the consent was freely given. Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002). We hold that the State met its burden in this case.

We note first that the factual basis for this argument rests entirely on his version of the facts, which differed materially from the version supplied by Summerlin's testimony. As noted above, we defer to the superior position of the trial court to determine the credibility of the witnesses. Bratton v. State, supra, and we give due deference to the trial court to resolve evidentiary conflicts. Medlock v. State, supra. Furthermore, in this case, we have considerably more before us in the record to guide our decision. We have reviewed the patrol car video tape that recorded the entire interaction between Salyer and Trooper Summerlin. Simply stated, the tape belies Salyer's testimony. Regarding the consent-to-search form, we saw Sumerlin explain to Salyer what it was that he was signing, instruct Salyer to initial after each of seven sentences, and tell Salyer to ask him any question he might have concerning the form. The tape also showed that when Sumerlin asked Salyer to open the hatchback, there was no attempt to withdraw his consent, and no assertion by Summerlin that he had a search warrant. What we observed instead was Salyer instantly and almost nonchalantly unlocking the hatchback after Summerlin asked him, "Does the back open up?" We observed no actual or implied coercion. Consequently, we conclude that the trial court did not err in denying Salyer's motion to suppress.

Affirmed.

Gladwin and Baker, JJ., agree.