May v. State ( 2016 )

Cite as 2016 Ark. App. 605ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-241
JIMMY DEWAYNE MAY Opinion Delivered: December 14, 2016
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. 66CR-15-607]
STATE OF ARKANSAS
APPELLEE HONORABLE STEPHEN TABOR,
JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Jimmy Dewayne May was charged in the Circuit Court of Sebastian County with
simultaneous possession of drugs and firearms, possession of methamphetamine, possession of
firearms by certain persons, and possession of drug paraphernalia. He was arrested in the
parking lot of a Fort Smith sporting-goods store after having purchased magazines for a 38
mm Ruger, which he had with him, and after police discovered a glass smoking pipe, a scale,
syringes, and a suspected bag of methamphetamine in his truck. He was convicted by a jury
of simultaneous possession of drugs and firearms, possession of methamphetamine, and
possession of drug paraphernalia, and was sentenced as a habitual offender to consecutive
terms of imprisonment totaling thirty years. He now appeals, contending that the trial court
erred in failing to suppress the evidence based on an illegal search. He argues that the
evidence from his truck was obtained in violation of Rules 2.2 and 3.1 of the Arkansas Rules
Cite as 2016 Ark. App. 605of Criminal Procedure1 and his rights under our state and federal constitutions. He points to
the testimony given at the suppression hearing by State’s witnesses Billie Knittig, co-owner
of the Tackle Box store and Officer Jeffery Taylor, Jr., of the Fort Smith Police Department.
Ms. Knittig testified that she called the police department because she was suspicious
of a male and a female who were “wandering around the store, up and down the aisles . . .
had been there a couple of hours and hadn’t bought anything” and because she thought—after
she watched them “picking [their] skin” and “noticed their teeth”—that they might be on
drugs. Officer Taylor testified that he was dispatched to the Tackle Box in response to a call
about “suspicious subjects . . . two people inside that had been there for approximately two
hours . . . acting very strange” and who had gotten into a black pickup truck with Louisiana
tags. He drove to the store in his marked patrol car and in uniform, and he got out to make
contact with the people in the truck. His purpose was to identify the people and “figure out
why they were in the store for so long, what the strange behavior was.” He noticed that the
driver was sweating a lot and both people were “very nervous, shaking a lot.” After getting
their names and checking for warrants, he discovered warrants for both of them and arrested
1
A law-enforcement officer has authority to “request any person to furnish
information or otherwise cooperate in the investigation or prevention of crime.” Ark. R.
Crim. P. 2.2 (2016). An 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 or certain misdemeanors. Ark. R. Crim. P. 3.1.
A suspicion is reasonable if it is “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.” Ark. R. Crim. P. 2.1.
2
Cite as 2016 Ark. App. 605May. Taylor requested May’s permission to search the truck, and May consented. The items
leading to May’s arrest were found when Taylor and backup officers conducted the search.
The State asserted at the conclusion of the pretrial hearing that everything Officer
Taylor did was valid under Rule 2.2. The State argued that Taylor’s initial approach to the
vehicle was legal based on information the police received from the store owner; that Taylor
“verified that [both people] had warrants”; and that May freely and voluntarily consented to
the search of his vehicle after his valid arrest on the warrant. May argued that Taylor testified
only that he was there “to investigate strange behavior” and was unable to articulate a specific
offense that he was investigating. He argued, “If we look at that versus a Rule 3.1 stop, that
must be based on reasonable suspicion that the person stopped has committed or is about to
commit a felony or misdemeanor.” Finally, he argued that the officer had neither “reasonable
suspicion nor probable cause to make the stop or reasonable suspicion to even make the
contact.” In a written order, the circuit court denied May’s motion to suppress without
ruling on his arguments.
May filed a motion for reconsideration and a supporting brief based on rules of criminal
procedure and constitutional rights. He argued that “Officer Taylor failed to provide a
specific, particularized, and articulable reason indicating that Mr. May might have been
involved in criminal activity.” The State responded that Officer Taylor’s initial encounter
with May was legal under Rule 2.2 when he made contact with May and his passenger to
inquire who they were and why they had been at the Tackle Box for at least two hours; that
only after learning that May had a valid warrant for arrest did Taylor arrest him on the
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Cite as 2016 Ark. App. 605warrant; that May then gave consent to search the vehicle; and that the items in the vehicle
were seized pursuant to his consent. The State argued that the seized items were not causally
connected to the initial encounter; rather, there was a valid warrant for May’s arrest, he was
arrested on the warrant, and he then gave consent to the search of his truck. The State
concluded that the valid arrest warrant broke the causal connection between the encounter
and the seizure, or, alternatively, that the warrant was an extraordinary intervening
circumstance that purged any taint from the initial contact.
The circuit court issued a written order that denied May’s motion for reconsideration
and made the following findings:
Assuming, arguendo, Defendant is [correct] in arguing his original detention
was not authorized, his motion must nevertheless fail. The Court notes the search
took place only after officers were advised of an active warrant for Defendant’s arrest.
There is nothing in the record which suggests the search would have occurred absent
this discovery. Therefore, there was an independent and intervening factor which led
to Defendant’ s arrest and the subsequent search, thereby removing any taint that may
have existed.
The case proceeded to trial, and May again renewed his motion to suppress. The motion was
again denied.
May argues on appeal that police lacked reasonable suspicion to make contact with him
and that the evidence found in his truck was obtained in violation of Rules 2.2 and 3.1 of the
Arkansas Rules of Criminal Procedure, as well as article 2, section 15 of the Arkansas
Constitution.2 He contends that the evidence should have been suppressed because Officer
2
The right of the people of this State to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated. Ark. Const. art. II,
§ 15.
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Cite as 2016 Ark. App. 605Taylor did not have reasonable suspicion or probable cause to make the stop or reasonable
suspicion to even make contact with him. He does not, however, challenge the circuit
court’s finding that, even if his initial detention was not authorized, the officer’s discovery of
the arrest warrant was an independent and intervening factor that led to his arrest and the
subsequent search, thereby removing any taint that may have existed. When an appellant fails
to attack a circuit court’s independent, alternative basis for its ruling, we will not reverse.
Barber v. State, 2015 Ark. App. 120, at 5 (citing Pugh v. State, 351 Ark. 5, 89 S.W.3d 909(2002)).
Because May does not challenge the circuit court’s alternate, independent basis for
denying his motion to suppress, we affirm.
Affirmed.
VIRDEN and HIXSON, JJ., agree.
David L. Dunagin, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
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