Mounts v. State , 48 Ark. App. 1 ( 1994 )

John Mauzy Pittman, Judge.

Appellant Ralph Gene Mounts entered a conditional guilty plea to a charge of possession of a controlled substance with intent to deliver pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure. He was sentenced to twenty years in the Arkansas Department of Correction, a $120,000.00 fine and court costs. He argues on appeal that the officers lacked probable cause to arrest him for driving under a suspended or revoked driver’s license and consequently were precluded from inventorying his impounded vehicle in which 60 kilograms (130 pounds) of cocaine were discovered. Mounts appeals the denial of his motion to suppress the admission of the cocaine into evidence. Our review requires us to conclude that his motion to suppress should have been granted; therefore, we must reverse to permit appellant to withdraw his guilty plea as provided for in Rule 24.3(b).

Officer Ron Ball of the Arkansas State Police testified that on August 7, 1991, he stopped appellant because his vehicle’s Georgia license plate did not have a monthly expiration sticker. After determining the vehicle was rented, Officer Ball issued appellant a warning ticket. Appellant produced what appeared to Officer Ball to be a valid Texas driver’s license. Officer Ball then received appellant’s permission to search the vehicle. During the search, Officer Ball asked appellant what was contained in a heavy suitcase, and appellant said it contained some books. Subsequently, appellant withdrew his consent to the search, and the search was terminated. Officer Ball said that he had reservations about the information given to him, so he followed appellant while a background check was done on appellant’s driver’s license, vehicle registration, and criminal history. He testified that he subsequently contacted Officer Karl Byrd of the Arkansas State Police requesting additional information about appellant, and that the police radio operator advised him that appellant’s Illinois driver’s license was currently revoked. Officer Byrd then stopped appellant for driving with a revoked Illinois license. Officer Byrd said that appellant produced an apparently valid Texas driver’s license and then he asked his communications center to verify that Texas law was the same as Arkansas law, and upon confirming that it was, he arrested appellant for driving under a revoked license. Officer Byrd testified that he believed that Texas law precluded issuance of a Texas driver’s license if the applicant’s driver’s license in another state had been revoked or suspended and that he believed Texas erroneously issued a license to appellant because appellant had a revoked Illinois license. Officer John Scarberough of the Arkansas State Police was also at the stop. He testified that the only basis the officers had for believing that the Texas license was invalid was that appellant had a revoked Illinois license. However, Officer Byrd stated that the officers did not inquire of the Texas officials whether appellant’s Texas license was valid or whether it had been cancelled, revoked or suspended.

After appellant was arrested for driving under a revoked license, his vehicle was impounded and an inventory conducted pursuant to Arkansas State Police policy and for purposes of safekeeping of the vehicle and its contents in accordance with Ark. R. Crim. P. 12.6(b). During the inventory, approximately sixty kilograms of cocaine were discovered in a suitcase in the trunk of the vehicle.

Appellant first argues that the officers did not have probable cause to arrest him for driving under a revoked license. A law enforcement officer may make a warrantless arrest of a person whom he has reasonable or probable cause to believe has violated the law in the officer’s presence. Ark. R. Crim. P. 4.1 (a)(iii). Although the officer at the time of the arrest is not required to have enough proof to sustain a conviction in order to have probable cause to make a warrantless arrest, the officer must possess reasonable, trustworthy information sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense. Vega v. State, 26 Ark. App. 172, 762 S.W.2d 1 (1988). An officer’s mere suspicion or even a “strong reason to suspect” that an offense was committed is not enough to establish probable cause. Roderick v. State, 228 Ark. 360, 705 S.W.2d 433 (1986); Vega v. State, supra. See Wong Sun v. U.S., 371 U.S. 471 (1963); Henry v. U.S., 361 U.S. 98 (1959). Probable cause is determined by the officer’s knowledge at the time of the arrest. Roderick v. State, supra. Further, the U.S. Supreme Court has held that the requirement of probable cause to make a warrantless arrest is to be strictly enforced. Henry v. U.S., supra.

Appellant was arrested for driving under a revoked driver’s license in violation of Ark. Code Ann. § 27-16-303(a)(l) (Repl. 1994), which states:

Any person whose driver’s license or driving privilege as a nonresident has been cancelled, suspended, or revoked as provided in this act and who drives any motor vehicle upon the highway of this state while such license or privilege is cancelled, suspended, or revoked is guilty of a misdemeanor. [Emphasis added.]

Arkansas Code Annotated § 27-16-206(a) and (b) (Repl. 1994) provides in part:

(a) “Suspend” means to temporarily withdraw, by formal action, a driver’s license or privilege to operate a motor vehicle. . . .

(b) “Revoke” means to terminate, by formal action, a driver’s license or privilege to operate a motor vehicle. . . .[Emphasis added.]

Thus, under Arkansas law, a driver’s license is not automatically revoked or suspended by operation of law when grounds therefore arise, but only after formal action is taken to revoke or suspend the license. The same is true under Texas law. See Vernon’s Ann. Civ. St. of Tex., art. 6687b, sec. 22(a) (1994). Even though appellant produced what appeared to be a valid Texas license, the officers arrested him without inquiring as to whether Texas had revoked or cancelled the license. The arrest was made because the officers surmised the Texas license was erroneously issued and without any inquiry as to the status of appellant’s license as determined by Texas officials.

Texas law precludes issuance of a Texas driver’s license to an applicant whose license in another state has been suspended, revoked or cancelled, during the period of the suspension, revocation or cancellation. Vernon’s Ann. Civ. St. of Tex., art. 6687b, sec. 4 (1994). Texas law also permits cancellation of the license if there is a subsequent determination that the applicant was not entitled to a license. Vernon’s Ann. Civ. St. of Tex., art. 6687b, sec. 25A (1994). Simply put, appellant produced a Texas driver’s license, and the officers had no knowledge that it had been can-celled, suspended or revoked by Texas. The officers merely verified Texas law on issuing a license to a person whose license in another state had been suspended or revoked, without inquiring into the status of appellant’s driver’s license as determined by Texas officials. There is no evidence in the record to indicate that appellant’s Texas driver’s license was invalid. We are compelled to conclude that appellant’s arrest was without probable cause and, therefore, illegal.

A vehicle may be impounded and inventoried only as the consequence of a legal arrest. Ark. R. Crim. P. 12.6(b). Since we must conclude that the arrest was without probable cause and, therefore, illegal, an inventory of the vehicle was also improper. Vega v. State, supra. Evidence seized as a consequence of an illegal arrest must be excluded at trial. Wong Sun v. U.S., supra.

The dissent argues that the officers had probable cause to conduct a warrantless search of appellant’s vehicle. Arkansas Rule of Criminal Procedure 14.1(a) provides that an officer is permitted to conduct a warrantless search of a moving vehicle located on a public way if the officer has reasonable cause to believe that the vehicle contains things subject to seizure. At the time of the second stop, the officers had no knowledge of illegal drugs in appellant’s vehicle. The only knowledge the officers had was (1) that appellant withdrew his consent and terminated the search at the first stop (where he was stopped for failure to display a monthly expiration sticker on the license plate) and (2) that appellant had a heavy suitcase in the trunk of his vehicle. In addition, Officer Ball testified that he heard on the police radio that appellant had a prior narcotics violation, but he determined that that was incorrect after the second stop was made. Officer Byrd, who initiated the second stop, testified that “no drug related offense” was reported when the criminal history was checked. He also stated that, “I did not have any suspicion that [appellant] might have something to hide.” Reasonable cause to conduct a warrantless search of a vehicle requires more than mere suspicion, as the officers must possess reasonably trustworthy information sufficient to cause a person of reasonable caution to believe that the vehicle contains evidence subject to seizure. Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989); See Ark. R. of Crim. P. 14.1(a). Based on the officers’ testimony and the legal standard cited above, we cannot conclude that probable cause existed to conduct a warrantless search of appellant’s vehicle. Any warrantless search of a vehicle is presumptively unconstitutional. U.S. v. Ross, 456 U.S. 798 (1982). The State has failed to sustain its burden to provide a legal justification for the search. Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985).

Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment right to be free from unreasonable searches and seizures, cannot be used against the accused. U.S. v. Calandra, 414 U.S. 338, 347 (1974); Mapp v. Ohio, 367 U.S. 643 (1961). Therefore, without a valid arrest and without probable cause to make a warrantless search of appellant’s vehicle, we must conclude that the cocaine was illegally seized and should be excluded from evidence. Mapp v. Ohio, supra; Henry v. U.S., supra.

In reviewing the denial of a motion to suppress evidence, the appellate court makes an independent determination based on the totality of the circumstances and reverses the decision only if the trial court’s decision is clearly erroneous or clearly against the preponderance of the evidence. Houston v. State, 41 Ark. App. 67, 848 S.W.2d 430 (1993). Our review of the evidence compels us to conclude the trial court’s denial of appellant’s motion to suppress was clearly erroneous. The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Moreover, Arkansas criminal procedural rules and case law dictate the procedure that permits law enforcement officers to make warrantless arrests and searches.

Because we conclude that appellant’s motion to suppress should be granted on the basis of an illegal arrest and an unjustified warrantless search, we decline to address appellant’s arguments that his arrest was a pretext to search for contraband and that an inventory subsequent to his arrest would not include the trunk of his vehicle.

Reversed and remanded.

Cooper and Mayfield, JJ., dissent.