Donald Scucchi v. State of Arkansas
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION III
CACR 08-428
No.
Opinion Delivered
NOVEMBER 12, 2008
DONALD SCUCCHI
APPELLANT
V.
APPEAL FROM THE ASHLEY
COUNTY CIRCUIT COURT,
[NO. CR2007-137-1]
HONORABLE SAM POPE, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
JOHN B. ROBBINS, Judge
Appellant Donald Scucchi entered a conditional guilty plea to driving while
intoxicated, reserving in writing the right to appeal and challenge the trial court’s denial of
his motion to suppress evidence pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal
Procedure. In this appeal, Mr. Scucchi argues that his motion to suppress the incriminating
evidence should have been granted because the police officer lacked reasonable cause to stop
his vehicle. We affirm.
Officer Kevin Barnett was the only witness to testify at the suppression hearing. He
testified that he was on patrol in Ashley County on February 3, 2007, when he received a
broadcast from a dispatcher. The dispatcher related that an unidentified civilian had called
and reported a reckless driver. Based on the information given by the civilian, Officer
Barnett was able to locate the suspected vehicle, which was being driven by Mr. Scucchi.
The vehicle matched the description and license plate provided by the tipster.
Officer Barnett testified that he followed Mr. Scucchi’s vehicle for about a mile.
During that time, Officer Barnett observed very noticeable and continuous weaving between
the center line and fog line. Officer Barnett acknowledged that Mr. Scucchi never crossed
any lines, but stated that the weaving from line to line “created red flags.” Officer Barnett
also indicated that Mr. Scucchi was driving at a normal speed. Based on the continuous
weaving, Officer Barnett made a traffic stop. Several sobriety tests were administered, and
according to the officer Mr. Scucchi failed them all and was placed under arrest. After the
hearing, the trial court denied appellant’s motion to suppress.
Mr. Scucchi now argues that the trial court erred in denying his motion because the
stop of his vehicle was illegal. The applicable rule is Rule 3.1 of the Arkansas Rules of
Criminal Procedure, which provides in relevant part:
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.
Appellant relies on our decision in Frazer v. State, 80 Ark. App. 231, 94 S.W.3d 357 (2002),
where we held that when reasonable suspicion is based solely on a citizen-informant’s report,
the three factors in determining reliability are: (1) whether the informant was exposed to
possible criminal or civil prosecution if the report is false; (2) whether the report is based on
personal observations of the informant; and (3) whether the officer’s personal observations
corroborated the informant’s observations. Mr. Scucchi asserts that the testimony in this
case established that the informant did not identify himself, nor did he personally observe
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appellant’s driving. Because these elements of the test announced in Frazer were missing,
appellant contends that the officer lacked reasonable suspicion as required by Rule 3.1 and
that his motion to suppress should have been granted.
In reviewing a trial court’s denial of a motion to suppress evidence, we conduct 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. Sims v. State, 356
Ark. 507, 157 S.W.3d 530 (2004). On our de novo review, we hold that there was no error
in the trial court’s denial of Mr. Scucchi’s motion to suppress because the officer had
reasonable suspicion that justified the stop.
The justification for a stop depends on whether, under the totality of the
circumstances, the police have specific, particularized, and articulable reasons indicating the
person or vehicle may be involved in criminal activity. Frette v. City of Springdale, 331 Ark.
103, 959 S.W.2d 734 (1998). In Frette, supra, our supreme court emphasized the significant
policy considerations where a tipster reports a driver who is drinking, and further wrote:
This court has previously recognized the magnitude of the State’s interest in
eliminating drunk driving in comparison to relatively minimal intrusions on motorists.
See Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). In balancing the rights of
a motorist to be free from unreasonable intrusions and the State’s interest in protecting
the public from unreasonable danger, one court has stated that “[a] motor vehicle in
the hands of a drunken driver is an instrument of death. It is deadly, it threatens the
safety of the public, and that threat must be eliminated as quickly as possible. . . . The
‘totality’ of circumstances tips the balance in favor of public safety and lessens the . . .
requirements of reliability and corroboration.”[Kaysville City v. Mulcahy, 943 P.2d 231
(Utah Ct. App. 1997)] (quoting State v. Tucker, 878 P.2d 855 (Kan. Ct. App. 1994)).
Id. at 120-21, 959 S.W.2d at 743.
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Turning to the present case, Officer Barnett had sufficient reasons to believe that
Mr. Scucchi may have been driving while intoxicated. Contrary to appellant’s argument, the
information relayed to the dispatcher was based on the citizen’s personal observations, as is
evident from the officer’s testimony that the dispatcher “was called by a civilian that had been
following Mr. Scucchi.” And Officer Barnett corroborated the citizen’s report when he
located the described vehicle in the given location and himself observed erratic driving. In
this regard, Officer Barnett testified that appellant’s vehicle was continuously weaving from
one line to the other for a period of about a mile. Although the informant in this case was
unidentified and thus did not expose himself to criminal or civil prosecution if his report was
false, his account was sufficiently corroborated. In Piercefield v. State, 316 Ark. 133, 871
S.W.2d 348 (1994), there was no tip given to the police, and our supreme court held that
the officer’s observation that a motorcycle was weaving from the centerline to the shoulder
alone gave the officer reasonable suspicion that the driver was driving while intoxicated. In
the present case, we hold that the tip based on the informant’s personal observations coupled
with the officer’s observations provided reasonable suspicion to make the stop.
Affirmed.
GLOVER and HEFFLEY, JJ., agree.
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