Brunson v. State

Alton Levern BRUNSON v. STATE of Arkansas

CR 96-826                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 17, 1997


1.   Appeal & error -- petition for review following decision by court of
     appeals -- case reviewed as if originally filed in supreme court. --
     After granting a petition for review following a decision by
     the court of appeals, the supreme court reviews the case as
     though the appeal was originally filed with it.

2.   Motions -- denial of motion to suppress evidence -- factors on review. --
     In reviewing the denial of a motion to suppress evidence, the
     appellate court makes an independent examination based upon
     the totality of the circumstances and reverses only if the
     decision is clearly against the preponderance of the evidence;
     the court views the facts in the light most favorable to the
     State.

3.   Search & seizure -- determination of probable cause -- standard same for
     search and arrest. -- The same standards govern reasonable- or
     probable-cause determinations, regardless of whether the
     question is the validity of an arrest or the validity of a
     search and seizure; the determination of probable cause is to
     be based on the factual and practical considerations of
     everyday life upon which reasonable and prudent persons act;
     in assessing the existence of probable cause, the appellate
     court's review is liberal rather than strict.

4.   Arrest -- warrantless arrest -- when officer may make. -- With
     reasonable cause to believe that an offense has been or is
     being committed in the officer's presence, an officer may make
     an arrest without a warrant pursuant to A.R.Cr.P. Rule
     4.1(a)(iii).

5.   Arrest -- smell of marijuana or its smoke gives rise to reasonable
     suspicion to arrest occupants of vehicle. -- The smell of marijuana
     or its smoke emanating from a vehicle gives rise to reasonable
     suspicion to detain the occupants to determine the lawfulness
     of their conduct, to search the vehicle, and to arrest some or
     all of its occupants, depending upon the particular
     circumstances.

6.   Arrest -- smell of marijuana provided reasonable cause to arrest occupants
     of vehicle in which appellant was passenger. -- The supreme court
     concluded that the smell of the marijuana or its smoke
     emanating from a vehicle that had been stopped for violation
     of a noise ordinance gave the detective reasonable cause to
     believe that an offense had been or was currently being
     committed inside the enclosed space of the vehicle; he thus
     had probable cause to arrest the occupants of the vehicle,
     including appellant, consistent with A.R.Cr.P. Rule
     4.1(a)(iii).

7.   Search & seizure -- search and arrest were substantially contemporaneous. -
     - Once an officer has made a lawful arrest, he may, without a
     warrant, search the person to obtain evidence of the
     commission of the offense or to seize contraband pursuant to
     A.R.Cr.P. Rule 12.1(d); a search is valid as incident to a
     lawful arrest even if it is conducted before the arrest,
     provided that the arrest and search are substantially
     contemporaneous and that there was probable cause to arrest
     prior to the search; here, the smell of marijuana or its smoke
     emanating from the vehicle constituted probable cause to
     arrest the occupants, and, according to the detective's
     testimony, the smell existed prior to the search; the search
     and the arrest were substantially contemporaneous, the
     detective having testified that he conducted a pat-down search
     of appellant, found the marijuana, arrested appellant, and
     then continued to search him following the arrest.

8.   Search & seizure -- warrantless search of appellant was reasonable. --
     Under the totality of the circumstances, the supreme court
     concluded that the warrantless search of appellant's person
     was reasonable; accordingly, it could not conclude that the
     trial court erred in denying appellant's motion to suppress;
     in reaching this conclusion, the court balanced the public
     interest of officer safety against appellant's right to
     personal security free from arbitrary interference by law
     officers.

9.   Search & seizure -- pat-down search was not arbitrary interference with
     appellant's personal-security interest. -- Weighing appellant's
     personal interest, the supreme court determined that where the
     search in question was a pat-down search conducted
     contemporaneously with an arrest based on probable cause, it
     was not an arbitrary interference with appellant's personal-
     security interest.

10.  Search & seizure -- balance weighed in favor of public interest -- search
     of appellant's person was reasonable. -- Because the danger to an
     officer during a traffic stop is likely to be greater when
     there are passengers in addition to the driver of the stopped
     car, an officer making a traffic stop may order passengers to
     get out of the car pending the completion of the stop; the
     supreme court, weighing the public interest in officer safety,
     which was not at issue at trial, concluded that on the facts
     of the case, there was no need for further detention to
     complete the stop because the smell of marijuana or its smoke
     emanating from the vehicle constituted probable cause to
     arrest the occupants, that the balance weighed in favor of the
     public interest, and that the search was reasonable.


     Petition for Review of the Arkansas Court of Appeals;
affirmed.
     William R. Simpson, Jr., Public Defender, by:  Kent C. Krause,
Deputy Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Donald L. Corbin, Justice.
     We granted the State's petition to review the decision of the
court of appeals in this case where the sole issue is whether the
odor of marijuana or the smell of marijuana smoke emanating from a
legally stopped vehicle constitutes probable cause to search the
occupants.  The trial court ruled that probable cause existed,
convicted Appellant Alton Levern Brunson of one count of possession
of a controlled substance, fined him $250, imposed court costs, and
sentenced him to five years' probation.  The court of appeals
reversed, holding there was no probable cause to conduct the
warrantless search of Appellant's person.  Brunson v. State, 54
Ark. App. 248, 925 S.W.2d 434 (1996).  After granting a petition
for review following a decision by the court of appeals, we review
the case as though the appeal was originally filed with this court. 
Mullinax v. State, 327 Ark. 41, ___ S.W.2d ___ (1997); Allen v.
State, 326 Ark. 541, 932 S.W.2d 764 (1996).  Upon our review, we
conclude the trial court did not err in denying Appellant's motion
to suppress and therefore affirm the judgment of conviction.
     Appellant was charged by information with one count of felony
possession of cocaine and one count of misdemeanor possession of
marijuana.  He moved to suppress the evidence obtained from the
search of his person on the bases that he was searched without a
warrant, without benefit of reasonable suspicion that he was armed
and dangerous, and without probable cause to believe that he had
committed a felony.  After a bench trial, the trial court denied
the motion to suppress.  Upon his conviction, the misdemeanor was
merged with the felony.
     In reviewing the denial of a motion to suppress evidence, we
make an independent examination based upon the totality of the
circumstances and reverse only if the decision is clearly against
the preponderance of the evidence.  Mullinax, 327 Ark. 41, ___
S.W.2d ___; Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992). 
We view the facts in the light most favorable to the State.  Id.  
     Appellant does not dispute that the vehicle in which he was a
passenger was legally stopped for violation of a raucous noise
ordinance in North Little Rock, Arkansas, on March 19, 1994, at
approximately 1:30 in the morning.  Detective John Breckon, of the
North Little Rock Police Department, testified that as he
approached the driver's side of the vehicle, he smelled an odor of
marijuana coming from the vehicle; on cross-examination, he stated
he smelled marijuana smoke.  He stated that he had all four
occupants step out of the vehicle and that, because of the smell,
all four occupants were searched.  Detective Breckon testified that
he performed a pat-down search of Appellant, who was in the rear
passenger seat of the vehicle, and found a small quantity of
marijuana and a package of cigarette rolling papers in his left
front pants pocket.  After arresting Appellant, Detective Breckon
stated that he continued searching Appellant and found two rocks of
cocaine in the cargo pocket of his left leg.
     Appellant's sole point of error on appeal is the legality of
the search of his person.  He does not challenge the stop itself or
the qualifications of the officer to identify the odor of marijuana
or its smoke.  Rather, he contends that the smell of marijuana or
its smoke emanating from the vehicle alone did not justify the
search of his person.  We simply do not agree and find Appellant's
argument to be wholly without merit.
     The same standards govern reasonable cause or probable cause
determinations, regardless of whether the question is the validity
of an arrest or the validity of a search and seizure.  Hudson v.
State, 316 Ark. 360, 872 S.W.2d 68 (1994).  The determination of
probable cause is to be based on the factual and practical
considerations of everyday life upon which reasonable and prudent
persons act.  Id.  In assessing the existence of probable cause,
our review is liberal rather than strict.  Id.  
     With reasonable cause to believe that an offense has been or
is being committed in the officer's presence, an officer may make
an arrest without a warrant pursuant to A.R.Cr.P. Rule 4.1(a)(iii). 
There is no doubt that, after having stopped the vehicle at
1:30 a.m. for playing music so loudly it violated a city ordinance,
upon smelling the marijuana or its smoke emanating from the
vehicle, Detective Breckon had probable cause to believe that an
offense had been or was being committed in his presence.  Quite
simply, the smell of the marijuana or its smoke emanating from a
vehicle constitutes facts and circumstances sufficient to warrant
a person of reasonable caution to believe that a controlled
substance has been or is being possessed or delivered or both, and,
thus, that a violation of law has occurred or is occurring.  
     Courts in this state have held that the smell of marijuana or
its smoke emanating from a vehicle gives rise to reasonable
suspicion to detain the occupants to determine the lawfulness of
their conduct, Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721
(1996), to search the vehicle, Lopez v. State, 29 Ark. App. 145,
778 S.W.2d 641 (1989) (citing Gordon v. State, 259 Ark. 134, 529 S.W.2d 330 (1976), cert. denied, 434 U.S. 929 (1977)), and to
arrest some or all of its occupants, depending upon the particular
circumstances, Crail, 309 Ark. 120, 827 S.W.2d 157.
     In the present case, the smell of the marijuana or its smoke
emanating from the vehicle gave Detective Breckon reasonable cause
to believe an offense had been or was currently being committed
inside the enclosed space of the vehicle.  He thus had probable
cause to arrest the occupants of the vehicle consistent with Rule
4.1(a)(iii).  We are not persuaded by Appellant's argument that an
individualized suspicion or cause is required to arrest each
occupant under the facts and circumstances presented in this case. 
Such an argument would lead to the illogical conclusion that none
of the four occupants could have been arrested even though the
smell of marijuana or its smoke was emanating from the enclosed
space of the vehicle where all four occupants were present.
     Once an officer has made a lawful arrest, he may, without a
warrant, search the person to obtain evidence of the commission of
the offense or to seize contraband pursuant to A.R.Cr.P. Rule
12.1(d).  A search is valid as incident to a lawful arrest even if
it is conducted before the arrest, provided that the arrest and
search are substantially contemporaneous and that there was
probable cause to arrest prior to the search.  Rawlings v.
Kentucky, 448 U.S. 98 (1980); Horton v. State, 262 Ark. 211, 555 S.W.2d 226 (1977).  Here, the smell of marijuana or its smoke
emanating from the vehicle constituted probable cause to arrest the
occupants, and, according to Detective Breckon's testimony, the
smell existed prior to the search.  The search and the arrest were
substantially contemporaneous as Detective Breckon testified he
conducted a pat-down search of Appellant, found the marijuana,
arrested Appellant, and then continued to search him following the
arrest.
     Under the totality of the circumstances, we conclude the
warrantless search of Appellant's person was reasonable. 
Accordingly, we cannot conclude the trial court erred in denying
Appellant's motion to suppress.  In making this conclusion, we have
balanced the public interest of officer safety against Appellant's
right to personal security free from arbitrary interference by law
officers.  Maryland v. Wilson, ___ U.S. ___ (No. 95-1268,
February 19, 1997).
     Initially, we are concerned with the circumstances.  This case
involves a moveable vehicle.  It was early in the morning when the
vehicle was stopped, 1:30 a.m.  The four occupants were riding and
listening to music played so loudly that it was in violation of a
city ordinance.  When the vehicle was stopped, the officer smelled
marijuana or its smoke emanating from the confined and enclosed
space of the vehicle.  The odor constituted probable cause to
believe an offense was committed or being committed under the
Controlled Substances Act.  The pat-down search was incident to the
arrest.
     On the private-interest side, we note that the search was a
pat-down search conducted contemporaneously with an arrest based on
probable cause.  Accordingly, this was not an arbitrary
interference with Appellant's personal security interest.
     On the public-interest side is officer safety.  There were
four occupants in this vehicle.  Because the danger to an officer
during a traffic stop is likely to be greater when there are
passengers in addition to the driver of the stopped car, an officer
making a traffic stop may order passengers to get out of the car
pending the completion of the stop.  Wilson, ___ U.S. ___ (No. 95-
1268, February 19, 1997).  On these facts, there was no need for
further detention to complete the stop because the smell of
marijuana or its smoke emanating from the vehicle constituted
probable cause to arrest the occupants.  See Wilson, ___ U.S. ___,
n.3 (slip opinion at page 6, n.3).  As cited by the Court in
Wilson, eleven officers were killed and 5,762 were assaulted during
traffic stops in 1994 according to an FBI report; the risk of harm
to an officer increases when there is more than one occupant of the
vehicle.  Wilson, ___ U.S. ___ (slip opinion at page 4).  Contrary
to Appellant's assertions, Officer Breckon did not testify that he
was not concerned about weapons or his safety.  No evidence to that
effect was ever introduced, nor were any questions on the subject
of weapons or officer safety ever posed by either side.
Accordingly, we conclude that the balance weighs in favor of the
public interest and that the search was reasonable.
     We are not unmindful of Appellant's arguments concerning, and
the court of appeals' interpretation of, A.R.Cr.P. Rule 14.1. 
There is no evidence, however, that the vehicle was searched in
this case, and we have not analyzed the search of Appellant's
person as being incident to a vehicular search.  Even assuming
arguendo that we did so analyze the search, we would be hesitant to
interpret Rule 14.1 as narrowly as did the court of appeals.  Such
an interpretation would require officers to turn their backs on the
occupants to search the vehicle before ever patting-down the
occupants for weapons and would be in total disregard of the
officer's safety.  Rather, upon presentation of appropriate facts,
we might consider an interpretation of Rule 14.1(b) upholding the
search of an individual's person contemporaneously with the search
of a vehicle  -- an interpretation that is analogous to our law on
searches contemporaneous with arrests.
     The judgment of conviction is affirmed.
     Imber, J., concurs.
     Newbern, J., dissents.

     Imber, J., concurring.  I agree with the majority that, based
on the particular facts of this case, Detective Breckon had
reasonable cause to believe that an offense had occurred,
justifying a pat-down search of the appellant incident to his
arrest.  However, I disagree with the majority's reliance on Wilson
v. Maryland, ___ U.S. ___ (No. 95-1268, February 19, 1997), to
justify the reasonableness of the search.
     In Wilson the United States Supreme Court held that a police
officer may order the passengers of a lawfully-stopped car to exit
the vehicle.  There, the defendant was a passenger in a lawfully-
stopped automobile.  The investigating officer ordered the
defendant, who was sweating and appeared extremely nervous, out of
the vehicle.  When the defendant exited the car, an amount of crack
cocaine fell out of the vehicle and onto the ground.  The defendant
was subsequently charged with possession of cocaine with intent to
distribute.
     The Wilson Court extended to passengers the rule articulated
in Pennsylvania v. Mimms, 434 U.S. 106 (1977), that a police
officer may order the driver of a lawfully-stopped vehicle to exit
the car.  There, the Court balanced the public and private
interests in determining the reasonableness of the intrusion,
deeming the additional intrusion of stepping outside of the vehicle
de minimis.  In Wilson, the Court likewise balanced the public and
private interests, noting in particular legitimate concerns about
officer safety in traffic stops when there are passengers inside
the vehicle.  While the considerations for ordering a passenger to
exit were not as strong as those for the driver, "the additional
intrusion on the passenger is minimal."  Maryland v. Wilson, supra.
     Returning to the present case, there is no doubt that Maryland
v. Wilson would provide a justification for ordering Brunson out of
the vehicle.  However, as noted by the majority, there was no
evidence that Detective Breckon was concerned about personal
safety.  He simply smelled marijuana or smoke emanating from the
vehicle, giving him probable cause to believe that an offense had
been committed.  Thus, the search in this case was reasonable
because it was incident to his lawful arrest.  See Ark. R. Crim. P.
12.1(d).

                David Newbern, Justice, dissents.



     The unconstitutionality of the search of Alton Levern Brunson
and the subsequent error in admitting evidence found in the search
were explained very well in the Court of Appeals opinion, Brunson
v. State, 54 Ark. App. 248, 925 S.W.2d 434 (1996), and need not be
explained again.  
     The majority of this Court concludes the search was proper
because it was incident to an arrest.  It relies on  Ark. R. Crim.
P. 4.1(a)(iii) to justify the arrest.  The rule provides:

          (a) A law enforcement officer may arrest a person without
     a warrant if the officer has reasonable cause to believe that
     such person has committed
                              ***
               (iii) any violation of law in the officer's  
          presence; ...

There was no "reasonable cause" to search Mr. Brunson until after
the search had turned up marijuana on his person.  In an attempt to
apply the rule allowing a search incident to arrest, the majority
says, "The search and the arrest were substantially contemporaneous
as Detective Breckon testified he conducted a pat-down search of
Appellant, found the marijuana, arrested Appellant, and then
continued to search him following the arrest."  Clearly, the search
commenced prior to any arrest, and the arrest was the result of the
search.  
     Rawlings v. Kentucky, 448 U.S. 98 (1980), and Horton v. State,
262 Ark. 211, 555 S.W,2d 226 (1977), are cited by the majority for
the proposition that a search prior to arrest is proper if there is
probable cause to arrest prior to the search.  The majority does
not say what the probable cause for arresting Mr. Brunson may have
been.
      After expressing the legitimate general concern with respect
to the safety of officers making traffic stops, the majority
opinion states,

     Contrary to Appellant's assertions, Officer Breckon did not
     testify that he was not concerned about weapons or his safety. 
     No evidence to that effect was ever introduced, nor were any
     questions on the subject of weapons or officer safety ever
     posed by either side.  Accordingly, we conclude that the
     balance weighs in favor of the public interest and that the
     search was reasonable.
The implication is that a lack of evidence that an officer feared
for his safety outweighs a citizen's right under the Fourth
Amendment to the United States Constitution to be free of an
unreasonable search.  That is a remarkable conclusion.
     Also remarkable is the majority's statement that it would be
illogical to say none of four occupants of the vehicle could be
arrested even though a marijuana smell came from the car.  That
suggests that when an officer reasonably suspects a crime has been
committed by someone in a vehicle, all of the occupants of the
vehicle may be arrested and searched.  It is reminiscent of the
opinion by Justice George Rose Smith in Catt v. State, 691 S.W.2d 120, delivered April 1, 1995, which appeared in the Arkansas
Advance Reports at 285 Ark. 334, but which, sadly, did not make it
into the bound volume.  There, Justice Smith wrote to affirm the
convictions of twin brothers, tried jointly, because an officer
identified one of them, or someone who looked enough like him to be
his twin brother, as having sold the officer cocaine.  Justice
Smith wrote, "We have no alternative except to hold that each
verdict is supported by Officer Javert's unshaken identification of
the culprit, no matter who he was."
     My appreciation of the literary value of Catt v. State, supra,
which has been cited as far away as Delaware, see The [Wilmington]
News Journal, p. B4, April 12, 1996], is so strong that I could
never agree to overrule it.  The logic espoused in support of the
Catt brothers' convictions should not, however, be extended to the
search and the arrest of Mr. Brunson.
     I respectfully dissent.