Cockrell v. State , 2010 Ark. LEXIS 306 ( 2010 )

HANNAH, C.J.,

dissenting.

I respectfully dissent. While on patrol, Officer Ryan Baker entered Kohl’s parking lot and saw a truck parked in a location he subjectively thought might indicate Kohl’s was being robbed, and he seized the truck and its occupant by blocking it with his police car.¹ No specific, particularized, and articulable reasons indicating that Cockrell was involved in criminal activity, or that his truck was involved in criminal activity, existed at the time of the seizure and none have been offered by the State on appeal. Contrary to law, Baker seized Cockrell and his truck based on conjectural suspicion that Cockrell was involved in a robbery of Kohl’s. No robbery was taking place.

The other facts cited by the majority to support the seizure arose after Cockrell and his truck were seized and are irrelevant to the analysis on the seizure. When Baker blocked Cockrell’s truck, Baker could not see Cockrell. It was only after Baker seized Cockrell’s truck by blocking it that he turned on his takedown lights, saw Cockrell, and thought he was reaching for something on the floorboard. More speculative yet is the majority’s listing of the possibility of the track being a getaway vehicle for a robbery as a factor present justifying the |2i seizure. As already noted, no robbery was taking place and, in any event, the idea Cockrell’s vehicle might be a getaway vehicle came from Officer Madison who was not even present at the time of the seizure.

Before police may restrain a person, even for a short time, there must be an “articulable suspicion” that the person has committed or is about to commit a crime. Dowty v. State, 363 Ark. 1, 10, 210 S.W.3d 850, 855 (2005). Articulable suspicion is also characterized as reasonable suspicion. See Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). Articulable or reasonable suspicion may not exist in isolation: it “must be tied to the commission of a felony or a misdemeanor involving forcible injury to persons or property.” Id. at 154, 60 S.W.3d at 473. The suspicion must be more than imaginary or conjectural suspicion, in that “the police have specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity.” Id., 60 S.W.3d at 473.

Baker testified that he believed that the white truck “was involved in these robberies”; however, he offered no facts to support his conclusion. He further testified that “the way he [Cockrell] was parked in the area that he was parked indicated some type of criminal activity that may be taking place. I suspected a robbery.” But Baker admitted that he had no information “that this vehicle and Mr. Cockrell had been involved in any kind of drug deal or robbery or anything like that.” He had no information that the truck was anything other than a truck parked in the lot. He also testified that Cockrell was not seized, that Cockrell “was free to leave, his vehicle wasn’t.” This testimony that Cockrell was not seized is not ^credible.

The majority concludes that Officer Baker’s approach to investigate Cockrell’s vehicle was lawful under Arkansas Rule of Criminal Procedure 2.2; however, Baker approached to seize the truck by blocking it, not to engage in a consensual encounter and request cooperation under Rule 2.2. Rule 2.2 is irrelevant. This case concerns a seizure not an investigation. Arkansas Rule of Criminal Procedure 3.1 is applicable because stopping and retention of persons is at issue. The majority notes that when Baker turned on his takedown lights, he saw Cockrell reaching down. However, as already noted, Cockrell was seized before Officer Baker saw this. Nothing observed after the seizure can be used to justify or bolster Baker’s decision to seize Cockrell.

No “specific, particularized, and articula-ble reasons indicating that the person may be involved in criminal activity” were offered in this case. The seizure was illegal.

This case should be reversed and remanded.

SHEFFIELD, J., joins.

1 . Baker testified that he "pulled into the parking lot and parked directly in front of his car.” He also testified that Cockrell "didn't tty to put the vehicle in drive and run away, because he was unable to do so.” Clearly, Baker testified that he had seized Cockrell’s truck upon pulling into the lot.