Menne v. State
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Cite as 2010 Ark. App. 806
ARKANSAS COURT OF APPEALS
DIVISIONS II & III
o CACR10-577
Opinion Delivered
LESA DIANE MENNE
APPELLANT
December 8, 2010
APPEAL FROM THE LAWRENCE
COUNTY CIRCUIT COURT
[No. CR-08-213]
HONORABLE HAROLD S. ERWIN,
JUDGE
V.
STATE OF ARKANSAS
APPELLEE
Y
REVERSED and REMANDED
V
h ie f u d g e
Lesa Menne was convicted by a Lawrence County Circuit Court jury of possession of
drug paraphernalia, possession of marijuana, and possession of methamphetamine. She argues
that the trial court erred in denying her motion to suppress evidence found during the search
of her vehicle. She claims that she was illegally detained after a traffic stop and that any consent
she gave was invalid. Alternatively, she contends that her consent was not voluntary. We agree
that Menne was illegally detained after the traffic stop; therefore, the trial court erred in denying
her motion to suppress. Accordingly, we reverse and remand.
On October 29, 2008, Arkansas State Trooper Phillip Roark stopped Menne in her truck
for speeding.1 The trooper approached Menne and asked for her driver’s license, proof of
1
Menne does not contest the validity of the stop.
Cite as 2010 Ark. App. 806
insurance, and registration. Trooper Roark testified that because Menne “seemed to be
nervous,” it was late at night, he had previously received information that Menne was dealing
drugs, and he had found a small amount of marijuana in her vehicle (which someone else was
driving at the time) the month before, he returned to his patrol car and called for a drug dog.
According to Trooper Roark, about nine-and-half minutes into the stop Menne had
provided all the documentation that he requested and he had verified that documentation. He
decided to write her a warning ticket, which he began to fill out. The trooper admitted that up
to this point he had not observed anything of an illegal nature and that he had no “probable
cause” to search her vehicle. However, he asked Menne, who was still in her truck, to step
outside, where he advised her that he was going to issue her a warning ticket. Instead of giving
it to her to sign, he asked Menne for permission to search her vehicle. This was approximately
fourteen minutes into the stop. The parties dispute whether Menne consented, but there is no
dispute that the search took place. The trooper’s search of Menne’s vehicle revealed drug
paraphernalia and marijuana. In Menne’s purse, methamphetamine was discovered.
Menne’s motion to suppress sought to exclude the contraband found in her truck and
purse. The trial court denied the motion, and Menne was convicted. Menne’s first point on
appeal is that the trial court erred in denying her motion because she was illegally detained after
the traffic stop was completed. As such, any consent she gave was invalid. Specifically, she
claims that the purpose of the traffic stop was completed after nine-and-one-half minutes, which
was approximately five minutes before the trooper requested permission to search her vehicle.
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She points out that the trooper had returned all of her documentation and had written the
warning ticket. Only her signature on the ticket was lacking. Instead of having her sign the ticket
and releasing her, she contends that Trooper Roark unlawfully detained her when he asked that
she step outside her vehicle and requested consent to search. She claims that the delay was a
pretext—orchestrated to give the drug dog time to arrive. Menne also contends that because the
purpose of the stop was complete at nine-and-one-half minutes, the detention beyond that time
required reasonable suspicion of criminal activity under Arkansas Rule of Criminal Procedure
3.1, which was lacking in this case.
In reviewing the 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. Ayala v. State, 90 Ark. App. 13, 18, 203 S.W.3d
659, 663 (2005).
A continued detention after the legitimate purpose of the traffic stop has been completed
(absent reasonable articulable suspicion of criminal activity) is a violation of Arkansas Criminal
Procedure Rule 3.1.2 Sims v. State, 356 Ark. 507, 515, 157 S.W.3d 530, 536 (2004); Ayala, 90 Ark.
2
Rule 3.1 provides:
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 . . . a felony . . . ., if such action is reasonably necessary
either to obtain or verify the identification of the person or to determine the lawfulness
of his conduct.
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App. at 16, 203 S.W.3d at 662; Lilley v. State, 89 Ark. App. 43, 199 S.W.3d 692 (2004). In Sims,
the appellant was pulled over for a traffic violation. After the traffic stop was completed, the
officer handed the appellant his identification information and the traffic-violation warning, and
the appellant began walking back to his car. The officer then asked appellant for consent to
search appellant’s vehicle, and appellant said “no.” Nevertheless, the officer held Sims at the
scene until the drug dog arrived. The dog alerted on the car, the car was searched, and drugs
were discovered.
Our supreme court stated that a law-enforcement officer, as part of a valid traffic stop,
may detain a traffic offender while completing certain routine tasks and, as part of that process,
ask for consent to search the vehicle. Sims, 356 Ark. at 514, 157 S.W.3d at 535. The court then
held that after the officer handed the appellant his documentation and the warning ticket, “the
legitimate purpose of the stop had terminated.” Sims, 356 Ark. at 513, 157 S.W.3d at 534. As
such, the continued detention of the appellant after that point was a violation of Rule 3.1. Id. at
515, 157 S.W.3d at 536.
Similarly, in Ayala, after pulling the appellant over for speeding, the officer verified the
appellant’s documentation, found that “everything was in order,” but did not return the
documents to him. While still holding the paperwork, the officer asked the appellant if there
were drugs in the vehicle, to which the appellant invited the officer to conduct a search. The
officer ran the drug dog around the vehicle, the dog alerted, and a subsequent search revealed
Ark. R. Crim. P. 3.1 (2010).
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marijuana. Under those facts, our court held that it was evident that the purpose of the traffic
stop was completed, and absent any reasonable suspicion, it was the officer’s duty to return the
paperwork, issue a citation or warning, if necessary, and discontinue the detention. Ayala, 90
Ark. App. at 16, 203 S.W.3d at 662.3
The issue before us is whether the traffic stop was complete when Trooper Roark
obtained consent from Menne. Based on Sims and Ayala, we hold that it was. The legitimate
purpose of the traffic stop ended after nine-and-a-half minutes, when Trooper Roark had
received, verified, and returned all of Menne’s documentation. The trooper specifically testified
that he had completed his speeding investigation, and he had written the warning ticket. We
acknowledge that Trooper Roark had not yet given the ticket to Menne to sign. However, relying
upon our holdings in Sims and Ayala along with the trooper’s testimony that his investigation
was complete, that fact does not alter our conclusion. Nine-and-a-half minutes after stopping
Menne, the legitimate purpose of the stop was complete. The trooper’s failure to hand over the
warning ticket to Menne at that time was nothing more than a stalling tactic to allow time for
the drug dog’s arrival. Therefore, the trial court erred when it denied Menne’s motion to
suppress. Menne’s detention beyond the completion of the traffic stop was illegal, and any
subsequent consent given by Menne was invalid.
To the extent the State argues that under Rule 3.1, the trooper had a total of fifteen
3
In Ayala, this court ultimately affirmed the trial court’s denial of Ayala’s motion to
suppress, holding that the officer had reasonable suspicion that Ayala was committing a felony;
therefore, the officer was authorized to detain Ayala beyond the conclusion of the stop based
upon Arkansas Criminal Rule of Procedure 3.1. Ayala, 90 Ark. App. at 17, 203 S.W.3d at 662.
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minutes to conduct the traffic stop and obtain consent from Menne, we reject such an argument.
The time limit of fifteen minutes set forth in Rule 3.1 sets the maximum amount of time in
which an officer can detain someone where there is reasonable suspicion of criminal activity.
Ark. R. Crim. P. 3.1. As such, where a traffic stop is completed prior to the fifteen-minute mark,
and there is no reasonable suspicion to detain the person stopped, the person must be released.
When the purpose of the traffic stop ends short of fifteen minutes, officers are not at liberty to
take the remaining time, up to the fifteen-minute mark, to garner consent from the person
stopped.
We further hold that once the legitimate purpose of the stop had ended, Trooper Roark
did not have authority under Rule 3.1 to detain Menne because he had no grounds to reasonably
suspect that she was engaged in criminal activity. Trooper Roark testified that after he verified
all of Menne’s documentation, he asked her to step out of her truck despite the fact that he had
not observed anything of an illegal nature. He further testified that she had not committed any
criminal violation for which he could arrest her and that he did not have probable cause to
search her vehicle.
We are aware of the other testimony of Trooper Roark that Menne seemed nervous; she
was driving late at night; her background search revealed a prior arrest record; he had been
previously advised by a Walnut Ridge police officer she was dealing drugs; and the month prior,
he had stopped Menne’s truck and found drugs in it. The three latter facts do not constitute
reasonable, articulable suspicion that Menne was currently engaged in criminal activity because
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they are not facts that Trooper Roark personally observed that night. The only observations
actually made by Trooper Roark on the night in question were that Menne seemed nervous and
that she was driving late at night. We hold that in this case, those two facts considered together
fail to constitute reasonable suspicion of criminal activity. Laime v. State, 347 Ark. 142, 159, 60
S.W.3d 464, 475 (2001) (holding that mere nervousness, standing alone, does not constitute
reasonable suspicion of criminal activity and grounds for detention); Stewart v. State, 332 Ark.
138, 147, 964 S.W.2d 793, 798 (1998) (holding that the facts that appellant was walking in a highcrime area late at night did not give officers a sufficient reason to stop him under Rule 3.1).
Therefore, based on the totality of the circumstances, we hold that the trial court
committed error in denying Menne’s motion to suppress evidence. The legitimate purpose of
the traffic stop was complete nine-and-a-half minutes after the initial stop when Trooper Roark,
by his own testimony, had obtained, verified, and returned Menne’s documentation to her, he
had completed his speeding investigation, and he had written the warning citation. Any consent
given after that point by Menne was invalid, and the search was illegal. We further hold that the
trooper lacked reasonable suspicion pursuant to Rule. 3.1 to detain Menne beyond the
completion of the traffic stop. Accordingly, we reverse and remand for proceedings consistent
with this opinion. Because we reverse on Menne’s first point, we do not reach her second
argument on appeal alleging involuntary consent.
Reversed and remanded.
R OBBINS, K INARD, and A BRAMSON, JJ., agree.
G LADWIN and H ENRY, JJ., dissent.
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Cite as 2010 Ark. App. 806
R OBERT J. G LADWIN, Judge, dissenting. While I fully agree with the majority that
Trooper Roark was delaying the completion of the traffic stop in order for the drug dog to
arrive, I am convinced that our standard of review requires us to affirm; therefore, I
respectfully dissent.
In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a
de novo review based on the totality of the circumstances, reviewing the 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 circuit court and proper
deference to the circuit court’s findings. Mann v. State, 357 Ark. 159, 161 S.W.3d 826
(2004). We reverse only if the circuit court ruling is clearly against the preponderance of the
evidence. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). Based upon my review of the
evidence and giving the trial court’s decision the proper deference, I am compelled to
conclude that the trial court could find reasonable suspicion for Trooper Roark to delay
releasing the appellant. Our criminal rules define reasonable suspicion as “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: a suspicion that is
reasonable as opposed to an imaginary or purely conjectural suspicion.” Ark. R. Crim. P 2.1
(emphasis added). In Laime, the supreme court held that whether there is reasonable
suspicion depends on whether, under the totality of the circumstances, the police have
specific, particularized, and articuable reasons indicating that the person may be involved in
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criminal activity. Laime, 347 Ark. at 155, 60 S.W.3d at 464. Arkansas Code Annotated
section 16-81-203 (Repl. 2005) lists several factors to be considered in determining if an
officer has grounds for reasonable suspicion, including:
1)
The demeanor of the suspect;
2)
The gait and manner of the suspect;
3)
Any knowledge the officer may have of the suspect’s background or character;
4)
Whether the suspect is carrying anything, and what he or she is carrying;
5)
The manner in which the suspect is dressed, including bulges in clothing, when
considered in light of all of the other factors;
6)
The time of the day or night the suspect is observed;
7)
Any overheard conversation of the suspect;
8)
The particular streets and areas involved;
9)
Any information received from third persons, whether they are known or
unknown;
10)
Whether the suspect is consorting with others, whose conduct is reasonably
suspect;
11)
The suspect’s proximity to known criminal conduct;
12)
The incidence of crime in the immediate neighborhood;
13)
The suspect’s apparent effort to conceal an article; and
14)
The apparent effort of the suspect to avoid identification or confrontation by
a law enforcement officer.
The trial court made no specific findings and simply denied the motion to suppress;
therefore, we are left to speculate on the basis for his denial. We can infer that the trial court
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found reasonable suspicion for continued detention. Among the factors the court may have
relied on is the knowledge the officer had of the suspect’s background. Trooper Roark had
a previous encounter with appellant and her passenger, Christopher Smith, where the
passenger was found in the same truck with marijuana seeds. Next, the time of day and place
of encounter may be considered factors, as appellant was stopped at 11:00 p.m. on a state
highway. Further, Trooper Roark had information about appellant from a third party, as he
testified that he had received information from the Walnut Ridge Police Department that
appellant was dealing drugs. In my view, these are facts or circumstances that rise to more
than a bare suspicion.
With these factors in mind, Trooper Roark could detain appellant long enough to
request the consent to search. Appellant clearly indicated at least once that she felt she was
being harassed, but Trooper Roark testified that she consented to the search. The trial court
credited this testimony in denying the motion to suppress. The validity of the consent is a
factual question, and the trial court’s finding of fact will not be reversed unless it is shown to
be clearly erroneous. Cain v. State, 2010 Ark. App. 30 ___ S.W.3d ___.
The majority relies on our language in Ayala v. State, 90 Ark. App. 13, 303 S.W.3d
659 (2005), which states that once the purpose of the traffic stop is completed and absent any
reasonable suspicion it is the officer’s duty to return the paperwork, issue the citation or
warning if necessary, and discontinue the detention. I was a member of the panel deciding
that case, and I stand by that holding. The distinction between Ayala and the present case is
that the trial court in the present case could find reasonable suspicion from the facts and
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circumstances presented. Further, in Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007),
our supreme court seems to place some weight on the fact that the officer had not returned
appellant’s identification papers and had not given him a copy of the warning in determining
whether the traffic stop was completed.
Finally, I note that the majority relies on Trooper Roark’s testimony that he did not
have probable cause to search the vehicle. First of all, probable cause to search is not the
standard for a detention; reasonable suspicion is the standard. Further, the fact that an officer’s
testimony is contradictory about whether he had probable cause to arrest is not determinative
of the issue. Efurd v. State, 334 Ark. 596, 976 S.W.2d 928 (1998); State v. Bell, 329 Ark. 422,
948 S.W.2d 557 (1997). The same should be true on the question of reasonable suspicion
to detain.
Although this is a very close case, I am compelled to follow our standard of review;
therefore, I dissent.
HENRY, J., joins.
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