Darrell Biggers v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

DARRELL BIGGERS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-399

May 18, 2005

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[CR03-198]

HON. ROBERT EDWARDS, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

A jury convicted Darrell Biggers of possession of cocaine, possession of methylene dioxy methamphetamine (MDMA), and possession of drug paraphernalia. Biggers was sentenced to six years in prison and fined $5500. On appeal, he argues that the trial court incorrectly denied his motion to suppress because (1) he was illegally detained without reasonable suspicion or probable cause, and (2) his consent to a search of his vehicle was involuntary. We disagree on both points and affirm.

Arkansas State Police Trooper Richard Eads testified at both the suppression hearing and the criminal trial. He stated that on March 26, 2003, at around ten in the morning, he initiated a traffic stop after observing a brown Chevrolet Suburban drive off the right shoulder. During the stop, Eads asked the driver for license and registration and requested that he come back and sit in the officer's car. Trooper Eads testified that Darrell Biggers was the driver of the vehicle. Eads also explained that his patrol unit was outfitted with surveillance equipment, and the traffic stop was captured on videotape. The videotape was then played in its entirety for the court at the suppression hearing.1

On the videotape, Eads asked Biggers why he ran off the road, and Biggers explained that because of problems with his brakes and rotors on the truck, the vehicle was hard to control whenever he braked. After Eads and Biggers got into the patrol unit, Eads requested information on Biggers's criminal record, and a dispatch officer confirmed that Biggers had no outstanding warrants or tickets. Next, Eads gave Biggers a warning ticket and told him he needed to get the vehicle fixed. Eads then asked Biggers if he had been smoking any marijuana recently, to which Biggers responded negatively but stated that some other people had been doing so in his vehicle earlier that day. Eads next asked Biggers if he could search the vehicle, and Biggers responded, "go ahead and help yourself."

On redirect, Eads testified that when Biggers first got into the patrol car, he smelled of marijuana. After searching the vehicle, Eads found marijuana bits in the carpet and creases of the seats, as well as bags of marijuana and crack cocaine inside the console of the vehicle under the cup holder. He arrested Biggers and called for assistance from Roger Ahlf, a narcotics officer with the Arkansas State Police. Ahlf conducted a more detailed search of the vehicle, found several tablets of MDMA and a digital scale, and confirmed the previously discovered substances to be illegal drugs.

When we review the denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. Simmons v. State, 83 Ark. App. 87, 118 S.W.3d 136 (2003).

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. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). 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. at 512, 157 S.W.3d at 533. As part of a valid traffic stop, a police officer may detain the party while the officer completes certain routine tasks-such as computerized checks of the vehicle's registration, the driver's license, and the driver's criminal history-and writes the driver a citation or warning. Id. at 514, 157 S.W.3d at 535. During this process, the officer may ask the party routine questions such as the party's destination, the purpose of the trip, and whether the officer may search the vehicle; the officer may act on whatever information is volunteered. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001).

In this case, Eads testified that he witnessed Biggers's truck cross the line and run onto the shoulder. Therefore, the initial traffic stop was valid. The next-and more important-question is whether the continued detention of Biggers was valid. It is clear from watching the non-redacted videotape that Eads did not ask Biggers if he had been using drugs or for consent to search the vehicle until after he had returned Biggers's driver's license and handed him the warning citation. Under Ark. R. Crim. P. 3.1, a detention without arrest may transpire under certain circumstances:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer's presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

Pursuant to Ark. R. Crim. P. 2.1, "reasonable suspicion" is defined as "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 ... a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion." Our supreme court has held that the determination of whether an officer has reasonable suspicion depends on whether, under the totality of the circumstances, the officer has specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity. Laime, 347 Ark. at 155, 60 S.W.3d at 473. In the absence of reasonable suspicion, it is unlawful for law enforcement to detain a party once the legitimate purpose of the traffic stop is concluded. Sims, 356 Ark. at 515, 157 S.W.3d at 536. Our supreme court has clearly recognized that the odor of marijuana-an illegal substance-is sufficient to arouse suspicion and provide probable cause. See McDaniel v. State, 337 Ark. 431, 990 S.W.2d 515 (1999).

It is clear from Eads's testimony at the suppression hearing that he smelled what he believed was the odor of marijuana the moment Biggers entered the patrol vehicle. Thereinafter Eads had reasonable suspicion to believe that Biggers had committed a crime, and Eads could detain Biggers for a reasonable time under authority of Rule 3.1. Therefore, the trial court did not err in denying Biggers's motion to suppress on this basis, and we affirm.

Biggers also argues that the trial court erred in denying his motion to suppress because his consent to the search of his vehicle was involuntary. He argues that when Eads required Biggers to get into the patrol car, the officer created a coercive environment where no reasonable person would have felt free to withhold consent. However, the Supreme Court of the United States has held that after a valid traffic stop, a law-enforcement officer may ask the driver to exit the vehicle and sit in the patrol car to protect the officer's safety. Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam). Additionally, our supreme court has recognized that the smell of an illegal substance is sufficient to establish probable cause. McDaniel v. State, 337 Ark. 431, 990 S.W.2d 515 (1999) (finding that an officer had probable cause to search a vehicle during a routine traffic stop after smelling the odor of marijuana when he approached); Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998) (finding that an officer had probable cause to search a duffel bag that smelled of marijuana).

Although it is clear after viewing the videotape that Biggers consented to the search of his vehicle freely and without coercion, once Eads smelled the marijuana when Biggers entered the patrol unit, the search of the vehicle was supported by probable cause. Although the trial court did not expressly rely on this alternative in denying Biggers's motion to suppress, we may affirm for any reason supported by the record if the lower court reached the right result. Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002).

Affirmed.

Glover and Baker, JJ., agree.

1 Biggers was originally charged with possession of marijuana, possession of cocaine, possession of MDMA, and possession of drug paraphernalia, but he pled guilty to the marijuana charge and went to trial only on the other charges. Therefore, the videotape was redacted to remove all references to marijuana before it was played to the jury during Biggers's trial. However, because we are only concerned with the denial of Biggers's motion to suppress, we viewed and reference the non-redacted videotape showing the entirety of the traffic stop and subsequent arrest.