Lopez v. State
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SLIP OPINION
Cite as 2009 Ark. App. 750
ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR 09-631
Opinion Delivered NOVEMBER 11, 2009
PEDRO LOPEZ
APPELLANT
APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT,
[NO. CR-08-393]
V.
HONORABLE GAYLE K. FORD,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
JOHN B. ROBBINS, Judge
Appellant Pedro Lopez appeals his conviction for possession of a controlled substance
(marijuana) with intent to deliver after a bench trial in Lonoke County Circuit Court.
Appellant challenges the denial of his motion to suppress the drugs, over one hundred pounds
of marijuana concealed in the gas tank of the vehicle he was driving. There was no question
that the police officer had cause to pull the vehicle over along I-40 for a speeding violation
and had cause to arrest appellant for failure to have a valid driver’s license. There was no
question that the vehicle was properly impounded. The sole issue was whether appellant’s
right to be free from unreasonable searches and seizures was violated because the officer
searched the vehicle’s gas tank without benefit of a search warrant. We have reviewed this
appeal under the proper standards and affirm the denial of the motion to suppress.
Cite as 2009 Ark. App. 750
Our standard of review for a trial court’s decision to grant or deny a motion to
suppress requires us to make an independent determination based on the totality of the
circumstances, to review findings of historical fact for clear error, and to determine whether
those facts give rise to reasonable suspicion or probable cause. George v. State, 358 Ark.
269, 189 S.W.3d 28 (2004).
Here, once appellant was arrested, the officer began to perform an inventory search
while waiting for a wrecker to tow the vehicle. Under the driver’s seat was an open can of
beer along with marijuana seeds and stems. The officer also smelled the faint odor of
marijuana. A drug-detecting dog was run around the vehicle, and although it showed
interest, it did not “alert.” While waiting on the wrecker to arrive, the officer looked
underneath the truck, noticing that the gas tank appeared to be altered in some fashion.
The officer explained that he had hundreds of hours of professional training in
detecting drug trafficking and even taught such courses at the State Police Academy. He
testified that in his professional experience, appellant’s vehicle showed indicators of
concealment of narcotics. The officer described the alterations as new clamps underneath
the vehicle, visible indications that the bolts had recently been turned, and weld markings at
the rear of the tank.
After the vehicle arrived at impound, the officer ran a density meter on the gas tank,
which gave indication that something might be inside the tank. The officer then used a fiber-
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Cite as 2009 Ark. App. 750
optic camera to look down inside the tank, where he saw two metal boxes that took up the
majority of the tank space. Once the boxes were removed, they revealed 147 pounds of
marijuana in total. Appellant contends that because the vehicle was impounded, there was
no exigency and that a warrant was required. We disagree.
As a general rule, all searches conducted without a valid warrant are unreasonable
unless shown to be within one of the exceptions to the rule that a search must rest upon a
valid warrant. Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992). The burden is on
the State to establish an exception to the warrant requirement. Fultz v. State, 333 Ark. 586,
972 S.W.2d 222 (1998); Izell v. State, 75 Ark. App. 377, 58 S.W.3d 400 (2001).
Rule 12.6(b) of the Arkansas Rules of Criminal Procedure provides that “[a] vehicle
impounded in consequence of an arrest, or retained in official custody for other good cause,
may be searched at such times and to such extent as is reasonably necessary for safekeeping
of the vehicle and its contents.” Police officers may conduct a warrantless inventory search
of a vehicle that is being impounded in order to protect an owner’s property while it is in the
custody of the police, to insure against claims of lost, stolen, or vandalized property, and to
guard the police from danger. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998). An
inventory search, however, may not be used by the police as a guise for general rummaging
for incriminating evidence. Id. Thus, the police may impound a vehicle and inventory its
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contents only if the actions are taken in good faith and in accordance with standard police
procedures or policies. Id.
This search was continued after the vehicle was impounded, but it was not necessarily
part and parcel of an inventory search. This was a valid warrantless search because there was
probable cause to seize the object of the search—namely, narcotics. The odor of marijuana
coming from a vehicle is sufficient to arouse suspicion and provide probable cause for the
search of that vehicle. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998). As our
supreme court held in McDaniel v. State, 337 Ark. 431, 440, 990 S.W.2d 515 (1999):
We are readily mindful of the priceless value of constitutional liberties. They cannot
be lightly infringed upon or they will inevitably be whittled away to worthless. In the
instant case, the precedents governing automobile searches make it apparent, for
better or worse, that driving citizens and their cargo are less protected than when at
home. The facts and the law applicable to the instant case compel a holding that
probable cause justified the search of appellant’s vehicle and that the scope of that
search could include containers within the automobile that could contain the suspected
and ultimately discovered marijuana. We therefore affirm the trial court’s denial of
appellant’s motion to suppress.
Given the totality of circumstances here, the officer was justified in searching the gas
tank. The officer observed marijuana seeds and stems under the driver’s seat; there was faint
odor of marijuana in the vehicle; and the gas tank exhibited signs of tampering, typical of
drug-smuggling. At that point, all the officer’s activities were well within the scope of his
authority by virtue of the legal stop, detention, and arrest. The officer complied with
standard procedures to contact a wrecker service, conduct appropriate inventory activities,
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Cite as 2009 Ark. App. 750
and observe what was available to the naked eye. It was at that point that the officer gleaned
probable cause to search the vehicle.
As a general rule our Supreme Court permits the search of an arrestee’s vehicle only
when the arrestee is within reaching distance of the vehicle or it is reasonable to believe that
the vehicle contains evidence of the offense of arrest. See Arizona v. Gant, 77 USLW 4285,
120 S.Ct. 1710 (April 21, 2009). However, there are other established exceptions to the
warrant requirement that authorize a vehicle search under additional circumstances when
safety or evidentiary concerns demand it. See id. One of those exceptions is when probable
cause arises of another offense, and in that instance, the scope of a warrantless search of an
automobile is defined, not by the nature of the container in which contraband is secreted, but
rather by the object of the search and those places in which there is probable cause to believe
that it may be found. United States v. Ross, 456 U.S. 798 (1982) cited in Arizona v. Gant,
77 USLW 4285, 120 S.Ct. 1710 (April 21, 2009).
In this case, the officer gleaned probable cause to search this vehicle for narcotics as
he waited for the wrecker to tow the vehicle to impound. The search of this automobile was
thus appropriate under the Constitutions and our Rule of Criminal Procedure 14.1. The
justification to conduct such a warrantless search did not vanish once the vehicle was
immobilized or impounded. See Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996).
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Cite as 2009 Ark. App. 750
For the foregoing reasons, we affirm the denial of appellant’s motion to suppress and
resulting conviction.
H ENRY and B ROWN, JJ., agree.
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