Mosley v. State
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Cite as 2009 Ark. App. 799
ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR08-1408
Opinion Delivered DECEMBER 2, 2009
COREY J. MOSLEY
APPELLANT
V.
STATE OF ARKANSAS
APPEAL FROM THE MILLER
COUNTY CIRCUIT COURT,
[NO. CR-07-595-3]
HONORABLE KIRK JOHNSON,
JUDGE
APPELLEES
AFFIRMED
ROBERT J. GLADWIN, Judge
Appellant Corey J. Mosley was convicted on August 12, 2008, in Miller County
Circuit Court of possession of cocaine and sentenced to sixty months’ probation. On appeal,
he contends that the trial court erred in denying his motion to suppress, arguing that the
police officer who made the traffic stop of appellant’s vehicle had no reasonable suspicion to
do so. We affirm.
By criminal information filed October 10, 2007, in Miller County Circuit Court,
appellant was charged with possession of cocaine. Appellant filed a motion to suppress the
cocaine from being introduced at trial, arguing that it had been seized in violation of his
constitutional right to be free from unreasonable searches and seizures under the Fourth and
Fourteenth Amendments to the United States Constitution, article 2, section 15 of the
Arkansas Constitution, and Arkansas Rules of Criminal Procedure 3.1 and 4.1 (2008).
Cite as 2009 Ark. App. 799
At issue in the suppression hearing was the validity of the traffic stop. Officer Todd
Harness of the Texarkana Police Department testified that he was patrolling at 2:00 a.m. on
the morning of appellant’s arrest. He turned behind appellant’s vehicle on Eastside Drive.
He noticed that appellant’s car began to slow, and when it approached the intersection of
Preston and Baltimore Street, the car began to slow and then speed up and then slow down.
Ultimately, the car merged to the right-hand side of the road after it passed the intersection.
Officer Harness testified that this raised his suspicions because he was not sure what the
driver’s intentions were. He thought the car was going to turn, but instead, it sped up again
and then it again merged onto the side of the roadway. The second time it began to slow and
merge to the right side of the roadway caught Officer Harness’s attention. He stated that the
car again sped up and got back into the travel portion of the roadway, put its right blinker on,
and turned onto Park Street, which is not a through street. He stated that the erratic driving
led him to believe that the driver was unsure of exactly where he wanted to go. Also, he
stated that oftentimes people that are driving under the influence of alcohol or drugs tend to
exhibit those types of driving skills in the midst of negotiating a roadway or an intersection,
and oftentimes the alcohol or drug impairs their ability to drive safely. Because of his
suspicion, Officer Harness stopped appellant.
Officer Harness testified that appellant provided him with a wrong name. Appellant
told Officer Harness that his name was Marshall, but spelled it M-a-r-s-h-l-l. Appellant did
not have any identification with him, and was unable to recall his social-security number.
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Officer Harness also noted that appellant provided him with a date of birth that was
inconsistent with the date of birth that was in the in-house computer, which further
heightened his suspicions. Appellant was extremely nervous and visibly shaking. All this led
Officer Harness to believe that appellant was lying about his identity.
Officer Harness
explained that the tattoo on appellant’s shoulder, which read “Mosley,” coupled with the
other information, led to appellant’s arrest for obstructing governmental operations and failure
to identify and provide his identity to Officer Harness as an officer.
Appellant was placed in the back of Officer Harness’s unit on the left side. Once they
arrived at the basement of the police department, appellant’s body was positioned awkwardly
such that the right side of his torso was on the right side of the car, which is the opposite side
from which he had been placed. After appellant was taken out of the car, Officer Harness
checked the backseat for contraband, as is the policy of his police department. On the right
side of the vehicle, Officer Harness found a plastic bag that contained crack cocaine.
Appellant argued at the suppression hearing that Officer Harness did not have a
reasonable suspicion to make the traffic stop. The trial court denied the motion to suppress,
stating that the erratic driving, the time of day, 2:00 a.m., the streets and high-crime area
involved, appellant’s turning down a street with no exit, and appellant’s attempts to hide his
identity gave the officer articulable facts upon which to make a probable-cause determination.
After appellant was convicted, he filed a timely notice of appeal, and this appeal followed.
In reviewing the denial of a motion to suppress evidence, our appellate courts conduct
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a de novo review based upon the totality of the circumstances, reversing only if the circuit
court’s ruling is clearly against the preponderance of the evidence. Stokes v. State, 375 Ark.
394, 291 S.W.3d 155 (2009). Issues regarding the credibility of witnesses testifying at a
suppression hearing are within the province of the circuit court. Id. Any conflicts in the
testimony are for the circuit court to resolve, as it is in a superior position to determine the
credibility of the witnesses. Id.
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. See Ark. R. Crim. P. 3.1 (2008). The justification for the
investigative stop depends upon whether, under the totality of the circumstances, the police
have specific, particularized, and articulable reasons indicating that the person may be involved
in criminal activity. Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882
(1982). “Reasonable suspicion” means 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; that is, a suspicion that is reasonable as opposed to an
imaginary or purely conjectural suspicion. See Ark. R. Crim. P. 2.1 (2008).
In order for a police officer to make a traffic stop, he must have probable cause to
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believe that the vehicle has violated a traffic law. Sims v. State, 356 Ark. 507, 157 S.W.3d 530
(2004); Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Travis v. State, 331 Ark. 7, 959
S.W.2d 32 (1998). Probable cause is defined as “facts or circumstances within a police
officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that
an offense has been committed by the person suspected.” Burks v. State, 362 Ark. 558, 210
S.W.3d 62 (2005). In assessing the existence of probable cause, our review is liberal rather
than strict. Laime, supra. 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 occurred. Id.
Appellant contends that Officer Harness did not have reasonable suspicion to justify
stopping the vehicle and that it was therefore error to deny his motion to suppress. Appellant
cites Stokes, supra, where our supreme court held that there was no probable cause to believe
that the defendant was committing a traffic violation. The police officer in Stokes observed
the defendant driving under the speed limit on the interstate, make a hasty exit, and
eventually back down a city street where no other vehicles were around. Id.
Appellant also cites Davis v. State, 77 Ark. App. 310, 74 S.W.3d 671 (2002), wherein
the officers were held to have lacked reasonable suspicion to stop and detain the defendant
where the only factors tending to lead to reasonable suspicion were the time of day and the
incidence of crime in the neighborhood. However, this case was overturned by our supreme
court in Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003), where the court stated:
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Under a totality-of-the-circumstances test, the trial court concluded that this behavior
gave rise to a reasonable suspicion. Appellant and another man were in a high crime
area known for drug activity. They stood in a lot beside a vacant house when the
officers saw a hand-to-hand exchange. As the officers approached, the men separated
and walked quickly away. At that point, appellant gave Sergeant Ivy false information
when asked his name and birth date. He also appeared nervous, fidgety, and sweated
profusely. Nervous, evasive behavior is a pertinent factor in determining reasonable
suspicion. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).
Based upon our holding in [Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002)], as
well as our rules of criminal procedure, we cannot say that the trial court erred in
finding that the totality of the circumstances gave rise to a reasonable suspicion
sufficient to stop and briefly detain the appellant. See also [Potter v. State, 342 Ark. 621,
30 S.W.3d 701 (2000)] (reversing the court of appeals and holding that the officer was
justified in making an investigatory stop of a man believed to be stalking a woman).
Therefore, we conclude that the trial court did not err in finding that the totality of
the circumstances gave rise to a reasonable suspicion sufficient to justify making an
investigatory stop.
Id. at 417, 94 S.W.3d at 898.
Appellant further cites several cases in support of his argument that Officer Harness did
not have reasonable suspicion to stop him based upon the testimony that he was on patrol at
2:00 a.m., the area was known for drug activity, and that he did not stop appellant for
speeding or for any other traffic violation. See Stewart v. State, 332 Ark. 138, 964 S.W.2d
793(1998); Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980); Barrientos v. State, 72 Ark.
App. 376, 39 S.W.3d 17 (2001); and Jennings v. State, 69 Ark. App. 50, 10 S.W.3d 105
(2000).
Finally, appellant maintains that the motion to suppress should have been granted based
upon the totality of the circumstances, but was improperly denied by the circuit court. He
argues that, because the evidence was obtained during an unlawful stop, the evidence should
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be deemed “fruit of the poisonous tree.” Summers v. State, 90 Ark. App. 25, 203 S.W.3d 638
(2005).
The State claims that the initial stop of appellant’s vehicle was supported by reasonable
suspicion, and, thus, the trial court did not err by denying appellant’s motion to suppress. In
determining whether an officer had reasonable suspicion, courts must recognize that, “when
used by trained law enforcement officers, objective facts, meaningless to the untrained, can
be combined with permissible deductions from such facts to form a legitimate basis for
suspicion of a particular person and for action on that suspicion.” United States v. Cortez, 449
U.S. 411, 419 (1981). Based upon this reasoning, the State contends that the trial court did
not err. We agree.
Officer Harness testified that it was 2:00 a.m., and he was patrolling “a particular area
of town which is around Preston Street,” where, at that time of year, “we have quite a few
problems with people walking up and down the street, a lot of drug activity, a lot of things
going on over there that should not be going on, prostitution and such.” When he turned
behind appellant’s vehicle, he noticed that appellant’s car began to slow as it approached the
intersection at Preston and Baltimore Street, another area where police had had numerous
problems with drug activity. He saw the car begin to slow and then speed up and then slow
down, and ultimately merge to the right-hand side of the road. The car slowed again, then
sped up and again merged to the right side. The car sped up a bit, pulled back into the travel
portion of the roadway, then turned right onto Park Street, which is not a through street.
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Officer Harness testified that the street is known for criminal activity. He further testified that
it had been his experience that people driving under the influence of alcohol or another drug
tend to exhibit those types of driving skills. He ultimately stopped appellant’s car. Appellant
then falsely identified himself to Officer Harness. After the officer handcuffed appellant and
put him in the back of his patrol car, he took him to the station. When appellant got out of
the car, Officer Harness discovered the contraband underneath the backseat.
Therefore, Officer Harness had reasonable suspicion to stop and detain appellant to
determine whether he was driving under the influence of alcohol or drugs. The Arkansas
Supreme Court has determined that, “weaving across road lines at a substantial distance,”
Hoay v. State, 348 Ark. 80, 84, 71 S.W.3d 573, 575 (2002), and weaving from a highway’s
centerline to the shoulder at a late hour, Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348
(1994), were circumstances that provided officers with reasonable suspicion to stop a vehicle
to determine whether a suspect was driving under the influence. Here, the officer observed
appellant, at 2:00 a.m., speeding up and slowing down repeatedly, pulling to the side of the
road twice, and ultimately turning into a dead-end road in an area known for criminal
activity. Therefore, the officer had reasonable suspicion.
Affirmed.
GLOVER and BROWN, JJ., agree.
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