Bedsole v. State
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ARKANSAS COURT OF APPEALS
DIVISION III
No.
CACR08-376
ROGER BEDSOLE,
Opinion Delivered 7
JANUARY 2009
APPELLANT
APPEAL FROM THE POPE COUNTY
CIRCUIT COURT [NO. CR2006-375]
V.
THE HONORABLE DENNIS
CHARLES SUTTERFIELD, JUDGE
STATE OF ARKANSAS,
APPELLEE
REVERSED and REMANDED
D. P. MARSHALL JR. , Judge
The issue presented is whether a reasonable person in Roger Bedsole’s position
would have felt free to ignore State Trooper Condley’s post-traffic-stop questions and
proceed on his way. Bedsole was traveling east on I-40 in Pope County when
Condley noticed Bedsole’s car cross the fog line onto the shoulder. Condley initiated
a traffic stop. Bedsole pulled over and got out of his car to talk to Condley. Bedsole
provided his driver’s license, the rental agreement for his car, and answered Condley’s
questions. Condley issued Bedsole a warning. The video tape of the stop reveals that,
right after receiving the warning, Bedsole began to turn toward his vehicle. At that
instant, Condley said “[l]et me ask you a question.” The Trooper asked whether
Bedsole had any drugs or weapons in his car. Bedsole said that he did not. Condley
then asked to search the car. And Bedsole agreed.
Condley’s search revealed approximately two pounds of methamphetamine.
The State charged Bedsole with possession of a controlled substance with intent to
deliver and simultaneous possession of drugs and firearms. The State nolle prossed the
latter charge. Bedsole moved to suppress the items seized and his statements made
during the search. After a hearing, the circuit court denied his motion. Bedsole then
entered a conditional guilty plea, reserving his right under Ark. R. Crim. P. 24.3(b)
to appeal the denial of his motion to suppress. He now appeals.
We review the circuit court’s denial of Bedsole’s motion to suppress de novo,
looking at the totality of the circumstances, reviewing the court’s findings of fact for
clear error, and giving due weight to inferences drawn by the court. Bumgardner v.
State, 98 Ark. App. 156, 158–59, 253 S.W.3d 1, 3 (2007). We note two important
points at the threshold. First, Trooper Condley’s initial traffic stop of Bedsole’s car was
lawful—Condley witnessed the car cross the fog line. Sims v. State, 356 Ark. 507, 512,
157 S.W.3d 530, 533 (2004). Second, the State concedes that Condley did not have
reasonable suspicion, under Arkansas Rule of Criminal Procedure 3.1, to continue
detaining Bedsole after issuing the warning and completing the traffic stop.
The case thus turns on whether Condley’s post-warning questioning of Bedsole
was a consensual police-citizen encounter or an illegal detention. We agree with the
State that not every police-citizen encounter is a seizure. Dowty v. State, 363 Ark. 1,
10, 210 S.W.3d 850, 855 (2005). The critical question, though, is whether Trooper
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Condley’s conduct would have communicated to a reasonable person that he could
not answer Condley’s questions and leave. Ibid. at 10, 210 S.W.3d at 855–56.
We must consider the totality of the circumstances, a broad mandate. Smith v.
State, 321 Ark. 580, 585–86, 906 S.W.2d 302, 305 (1995). The cases identify various
facts bearing on whether a seizure occurred. These circumstances include: the
threatening presence of several officers; an officer’s display of a weapon; some physical
touching of the citizen; and an officer’s use of language or a tone of voice indicating
that compliance with the officer’s request might be compelled. Ibid. Whether the
officer tells a person that he is free to go, or speaks other parting words, is another
relevant fact. Lilley v. State, 362 Ark. 436, 440, 208 S.W.3d 785, 788 (2005);
Bumgardner, 98 Ark. App. at 160, 253 S.W.3d at 3–4. The federal cases on this issue
echo the relevance of all these circumstances. E.g., U.S. v. Pulliam, 265 F.3d 736,
740–41 (8th Cir. 2001); U.S. v. Ledesma, 447 F.3d 1307, 1314 (10th Cir. 2006). And
they highlight others. For example, whether the officer’s continued questioning
“change[s] the climate so that the reasonable listener would view participation in the
exchange as freely terminable” is another relevant circumstance. U.S. v. Sandoval, 29
F.3d 537, 542 (10th Cir. 1994).
This case is similar to Lilley, which also involved a valid traffic stop and the
officer’s post-warning questioning. Lilley, 362 Ark. at 437–39, 208 S.W.3d at 786–88.
The State argued that, after the officer issued the warning, Lilley was not detained
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because a reasonable person would have felt free to leave. Ibid. at 440, 208 S.W.3d at
788. Our supreme court disagreed. Ibid.
The circumstances of the Lilley stop and this one were similar, though not
identical. The officer asked Lilley to come back to his patrol car, where there was a
drug dog in the backseat, and Lilley complied. Lilley, 362 Ark. at 437–38, 208 S.W.3d
at 786–87. The officer then ran the appropriate checks, asked Lilley some general
questions, and issued a warning. Ibid. Here, Bedsole voluntarily got out of his car and
spoke with Trooper Condley near the front of the patrol car. Bedsole remained
between the vehicles while Condley ran the appropriate checks and asked him general
questions. This record contains no evidence that Condley had a drug dog with him.
In sum, the citizen’s location in Lilley presented greater coercive circumstances than
in this case.
Trooper Condley then issued Bedsole the warning and, after a moment’s pause,
said “[l]et me ask you a question.” Officer Condley testified that he “gave [Bedsole]
a warning and handed his driver’s license back and then started talking to him about
if he had anything illegal in the vehicle.” 362 Ark. at 438, 440, 208 S.W.3d at
787–88. Bedsole also testified that, after Trooper Condley issued the warning and
returned his paperwork, “[h]e never quit talking to me.” The video confirms this
testimony. Similarly, after issuing Lilley a warning and handing his paperwork back,
the officer “immediately launched into additional questions” about whether Lilley was
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carrying anything illegal in his car. 362 Ark. at 440, 208 S.W.3d at 788. The
immediacy of Trooper Condley’s continued questioning of Bedsole did not change
the encounter’s climate. 362 Ark. at 440, 208 S.W.3d at 788; see also Sandoval, 29 F.3d
at 542. Finally, the Trooper, like the officer in Lilley, never told Bedsole that he was
free to go. 362 Ark. at 440, 208 S.W.3d at 788.
This case presents a closer question than Lilley. After considering the totality of
the circumstances, however, we conclude that a reasonable person would not have felt
free to ignore Trooper Condley’s final questions and proceed on his way. We
therefore hold that the post-warning encounter was not consensual. Because the State
concedes that Condley did not have reasonable suspicion, the Trooper illegally
detained Bedsole. The circuit court should have suppressed all the evidence obtained
as a result of that illegal detention. Lilley, 362 Ark. at 445–46, 208 S.W.3d at 792.
Reversed and remanded.
VAUGHT, C.J., and HART, J., agree.
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