Phillip Eugene Parmley v. State of Arkansas

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ar04-692

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

PHILLIP EUGENE PARMLEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-692

MARCH 2, 2005

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. CR2001-584 IV]

HONORABLE JOHN HOMER WRIGHT, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant challenges his jury conviction of possession of drug paraphernalia with intent to manufacture and sentencing as a habitual offender, claiming that the trial court erred by denying his motion to suppress evidence that was found in the pickup truck he was driving. We find no error and affirm.

On January 12, 2004, a hearing was held on appellant's motion to suppress evidence obtained during what he contended was an improper stop occurring in the private-gated community of Diamondhead in Garland County, Arkansas. Appellant alleged that the chief of the Diamondhead police force, Chief Pat Mahoney, had no authority under either Rule 2.2 or 3.1 of the Arkansas Rules of Criminal Procedure, to stop, detain and search him in this case.

Chief Mahoney testified that, at about 4:15 to 4:30 a.m. on September 12, 2001, he was notified by the front-gate security office that a resident had complained about a suspicious vehicle at the swimming pool parking lot. He testified that the resident who made the call was an elderly woman who lives in Diamondhead and that he had received reliable information from her on earlier occasions. Chief Mahoney explained that visitors to the community are given a pass to hang from their rearview mirrors, or they will have a Diamondhead sticker on their vehicles. Chief Mahoney was told that a truck matching the description of the suspicious vehicle had entered Diamondhead earlier that morning to go to a house where Chief Mahoney had "dealings" in the past.

Chief Mahoney left his residence to locate the suspicious vehicle. He found the truck stopped at a stop sign. The truck did not move for about a minute, so Chief Mahoney turned around, came back and pulled up behind the vehicle. He then turned on his blue lights and approached appellant, who was the driver of the truck. The truck had neither a hang-tag on the rearview mirror nor a Diamondhead sticker on it. There were no identifying markings indicating that the truck belonged in the Diamondhead community.

Chief Mahoney testified that, when he approached the truck and during his initial contact with appellant, he noticed a strong chemical odor emitting from the vehicle. After approaching the truck, he asked appellant what he was doing. Appellant replied that he was looking for a house and that the homeowner had called the gate to allow appellant inside. Chief Mahoney asked appellant for his name and driver's license. Appellant said that he did not have a license with him, but provided his name and license number to the chief. Chief Mahoney then notified the Garland County Sheriff's Office of that information, and of the license plate number on the truck. The sheriff's office informed Chief Mahoney that appellant's driver's license was suspended. Mahoney placed appellant in the back seat of his car while writing appellant a citation for driving with a suspended license.

In the meantime, Deputy West with the sheriff's office arrived. Chief Mahoney asked appellant for consent to search the truck, and appellant signed a consent form in front of Deputy West and Chief Mahoney. After the consent to search was signed, Deputy West and Chief Mahoney placed appellant in the back of Deputy West's unit, closed the door, and started searching the truck. During the search, items were found that Chief Mahoney believed to be paraphernalia used to manufacture methamphetamine, including chemicals that Mahoney described as "meth oil." Deputy West testified that they found a vodka bottle containing three-parts liquid and a coffee filter, among other items. After finding the items, Mahoney read appellant his Miranda rights. Appellant then stated that he had "gassed off a little meth" earlier that morning.

In contrast to this testimony, appellant testified that he arrived at Diamondhead at 4:15 a.m. to paint a house. Appellant stated that the officer at the gate gave him a pass that he placed in the windshield, rather than hanging it from the rearview mirror. He testified that he got lost while trying to find the house, and Chief Mahoney approached him when he had stopped to look at a map. Chief Mahoney denied that appellant told him that he was there to do a painting job. Appellant testified that a number of chemical substances were in the truck, including paint, acetone, and paint thinners. He claimed that his consent limited the scope of the search to the bed of the truck, and that he refused to sign the consent form three times before the officers threatened to put him in jail and get a search warrant. Only then did he sign the form. Appellant further testified that the truck he was driving belonged to Arthur Paholke, Sr., who owned the painting company for which appellant worked. Chief Mahoney testified that Mr. Paholke arrived after the search was conducted.

On appeal, appellant argues that the search of appellant was improper at the time he was initially detained and the evidence seized should have been suppressed, contending that Chief Pat Mahoney had no authority under either Rule 2.2 or Rule 3.1 of the Arkansas Rules of Criminal Procedure to stop, detain, and search him in this case. Appellant's argument is unavailing.

In reviewing 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 against the preponderance of the evidence. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997); McDaniel v. State, 65 Ark. App. 41, 985 S.W.2d 320 (1999). Due deference is given to the trial court's findings in the resolution of evidentiary conflicts and determinations of credibility. Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000).

Appellant cites two rules of criminal procedure to support his argument. He first relies upon Rule 2.2. that allows an officer to make a nonseizure police-citizen encounter. In part, Rule 2.2 provides:

(a) 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. The insertion of the word "otherwise" in the rule shows that the officer's request for information must be in aid of the investigation or prevention of a crime. Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998); Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980).

The approach of the 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, with due consideration being given to the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter. McDaniel v. State, 20 Ark. App. 201, 726 S.W.2d 688 (1987).

Both appellant and Chief Mahoney testified that appellant had stopped the truck at a stop sign on a street in Diamondhead when Chief Mahoney came upon appellant, and Chief Mahoney further testified that the truck had not moved for about a minute before he approached the truck. The mere approach of a police officer to a truck parked in a public place does not constitute a seizure. Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997); Bohanan v. State, 72 Ark. App. 422, 38 S.W.3d 902 (2001). In Hammons, our supreme court held that generally an officer would be foolish to ignore even an anonymous tip, and that so long as he does not invade the privacy or freedom of others, he is free to investigate any police matter in any manner not prohibited by law. Hammons, 32 Ark. at 527, 940 S.W.2d at 428.

Chief Mahoney approached the truck to determine whether the occupant of the vehicle was in need of assistance or if some illegal activity was taking place. See Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990)(holding that officer properly approached an occupied parked car in the early morning hours to determine if there was problem or if illegal activity was occurring). The truck was parked at an intersection for an inordinate amount of time. Chief Mahoney had received a report of a suspicious truck by a reliable resident. Therefore, he was justified in approaching appellant as allowed by Rule 2.2(a).

Appellant also cites to Rule 3.1 in support of his argument. Rule 3.1 provides that a law enforcement officer may stop and detain any person he reasonably suspects is committing, has committed, or is about to commit a felony. For purposes of this rule, reasonable suspicion means a suspicion based upon facts or circumstances which give rise to more than a bare, imaginary, or purely conjectural suspicion. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989). An officer does not have to witness the violation of a statute in order to stop a suspect. Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994). The justification for an investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating a person or vehicle may be involved in criminal activity. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, 459 U.S. 882, (1982).

Among the factors to consider in determining whether an officer has grounds to "reasonably suspect" are the time of day or night the suspect is observed; the particular streets and area involved; any information received from third persons, whether they are known or unknown; the suspect's proximity to known criminal conduct; and incidence of crime in the immediate neighborhood. Ark. Code Ann. ยง 16-81-203 (1987); see also Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999).

The facts in this case support the conclusion that Chief Mahoney had reasonable suspicion to detain appellant. Chief Mahoney had been informed that a resident he knew to have been reliable, reported a suspicious truck, and Chief Mahoney came upon this truck not moving in the roadway. As Chief Mahoney approached the truck, he personally observed additional factors that raised his suspicions. He noticed that the truck did not have the Diamondhead sticker or pass hanging from the rearview mirror. Chief Mahoney smelled a chemical odor around the truck, and when he asked appellant for his driver's license, appellant did not have one. Chief Mahoney then learned that appellant's driver's license had been suspended.

Given these facts and circumstances, we cannot say that Chief Mahoney lacked authority under Rule 2.2. or 3.1 to approach or detain appellant.

Affirmed.

Bird and Crabtree, JJ., agree.