Douglas Ray Griffe v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR 05-854

February 22, 2006 DOUGLAS RAY GRIFFE APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

APPELLANT [NO.CR04-4188]

V.

HON. JOHN LANGSTON,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Andree Layton Roaf, Judge

Appellant Douglas Ray Griffe was tried de novo in a bench trial in Pulaski County Circuit Court upon appeal from a conviction in Pulaski County District Court for driving while intoxicated (DWI). The circuit court fined Griffe $250, assessed court costs, ordered suspension of his driver's license, and mandated that he attend alcohol-abuse education classes. Griffe appeals, arguing that the trial court erred in denying his motion for a directed verdict because the arresting officer did not have probable cause to stop him. We affirm.

On March 11, 2004, at approximately 7 p.m., Pulaski County Sheriff's Deputy Chris Bawiec received a be-on-the-lookout (BOLO) bulletin originating from Grant County and alerting Deputy Bawiec to watch for a white pickup truck with an extended cab, a chrome tool box, a white male driver, and another male passenger. The BOLO suggested that the driver of this truck had threatened to commit suicide. At trial, Deputy Bawiec admitted that he did not know who reported the BOLO and did not believe that the actual reporter was a police officer.

Deputy Bawiec noticed Griffe's white pickup truck turning onto Arch Street where it intersected with Baseline Road, heading south toward Grant County. While Deputy Bawiec did not notice anything wrong with Griffe's driving, he pulled the truck over solely to investigate the BOLO. After the stop, Deputy Bawiec noticed that Griffe smelled of intoxicants, and he arrested Griffe for DWI. Deputy Brixie subsequently administered a blood alcohol content (BAC) test; the first test registered 0.108, and the second test registered 0.103.

At the close of the State's case, Griffe's attorney moved for a directed verdict, arguing that Deputy Bawiec had no reasonable suspicion to believe that Griffe had or was about to commit a crime, and as such, had no probable cause to even stop Griffe. The court denied this motion and the subsequently renewed motion made at the close of evidence. Griffe now appeals, contending that the court erred when it denied his motions for directed verdict.

On appeal, Griffe argues that Deputy Bawiec had no reasonable suspicion to believe that he had committed a crime or was in the process of committing a crime, and that the BOLO did not give the deputy probable cause to make the traffic stop. The State argues that this court cannot consider Griffe's arguments because he failed to preserve them for appellate review. We agree.

In Holt v. State, 15 Ark. App. 269, 692 S.W.2d 265 (1985), Tommy Holt appealed his DWI conviction, asserting that the trial court erred in denying his motion to dismiss the charges because the arresting officer did not have probable cause to make the original stop. This court declined to reach the merits of Holt's appeal, holding that Holt did not properly preserve the issue; although Holthad characterized his motion as a motion to dismiss, it was actually a motion to suppress coupled with a motion for a directed verdict. Id. at 271, 692 S.W.2d at 267.

Motions to suppress are governed by Rule 16.2 of the Arkansas Rules of Criminal Procedure. Section (b) of Rule 16.2 requires that a motion to suppress be timely filed no later than ten days prior to trial; however, upon a showing of good cause, the court may entertain late suppression motions. In Holt, supra, Holt failed to file a motion to suppress before the start of trial, and he made no attempt to demonstrate good cause for waiting until the close of evidence to attempt to exclude evidence that he did not object to during trial; this court held that the trial court did not have to consider Holt's untimely request to suppress the evidence. See also Rideout v. State, 22 Ark. App. 209, 737 S.W.2d 667 (1987) (following the decision in Holt, supra, and finding that viewing the evidence in the light most favorable to the State, there was substantial evidence to support Rideout's conviction for DWI).

Under certain circumstances, the reviewing court has excused the failure to file a motion to suppress ten days before trial. In Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), Stewart filed a motion to suppress prior to trial; and at the start of trial, the court granted Stewart's request that it take up the issue of suppression contemporaneously with the issue of her guilt. In Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992), the trial court allowed Butler to make an oral motion to suppress on the day of his trial but prior to the taking of testimony. Similarly, in Vega v. State, 26 Ark. App. 172, 762 S.W.2d 1 (1988), the trial court allowed Vega to file a suppression motion only six days before the trial. Upon appeal, the reviewing court in each case found that the trial courts did not err by allowing these late suppression motions, especially in light of the fact that the State failed to make any objections at the time and, in fact, argued the motions. See Stewart, supra; Butler, supra; Vega, supra.

Furthermore, in order to preserve an issue for appeal, the defendant must object at the first opportunity. See e.g., Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000) (holding that a party who fails to object to the introduction of evidence at the first opportunity waives the argument on appeal). Here, Griffe's motion for a directed verdict at the end of the State's case in chief and the renewed motion at the close of all evidence were, in reality, motions to suppress the evidence coupled with motions for a directed verdict. Griffe failed to make a timely suppression motion before the start of testimony; in addition, he made no attempt to demonstrate good cause for waiting until after the State rested to object to evidence that he did not object to during trial. Griffe did not take the first opportunity to object when the State presented evidence of his BAC levels or his failure of the field sobriety tests. Therefore, Griffe did not preserve his challenge to the evidence, and his argument cannot now be considered on appeal.

Affirmed.

Pittman, C.J., and Glover, J., agree.