Roberson v. State , 54 Ark. App. 230 ( 1996 )

JUDITH Rogers, Judge.

Appellant, Tina Roberson, was convicted by a jury of possession of a controlled substance with intent to deliver and sentenced to twenty-three years in the Arkansas Department of Correction. Prior to trial, appellant filed a motion to suppress the fruits of an alleged illegal search and her subsequent statement. The trial court denied the motion, and it is from that denial that appellant appeals. We affirm.

The record reveals that a Hot Springs officer received a radio broadcast advising the officer to be on the look out for a yellow Datsun pick-up truck with a certain license plate number, occupied by a white male and black female.¹ The officer was informed that the occupants were suspected of selling stolen jewelry. Lieutenant Bond observed the suspect vehicle and made an investigatory stop. Lieutenant Bond observed a ring box on the front seat of the vehicle. He was questioning the occupants when a back-up officer arrived. The back-up officer conducted a weapons search of appellant and located controlled substances and drug paraphernalia. Appellant was arrested and gave a statement to local Drug Task Force agents.

On appeal, appellant argues that Lieutenant Bond lacked sufficient probable cause or reasonable suspicion to make an investigatory stop of the vehicle in which she was a passenger. Appellant specifically contends that Lieutenant Bond could not have had more than a bare suspicion that the occupants of the vehicle were involved in any criminal activity, either a felony or a misdemeanor.

Rule 3.1 of the Arkansas Rules of Criminal Procedure permits a police officer to stop and detain any person that he reasonably suspects has committed or is about to commit a felony or a misdemeanor involving danger of forcible injury to persons or property, where it is reasonably necessary to obtain or verify the identification of the party or to determine the lawfulness of his conduct. “Reasonable suspicion” means that suspicion based on facts and circumstances which, in and of themselves, may not constitute probable cause to justify a warrantless arrest, but which give rise to a suspicion that is reasonable as opposed to imaginary or conjectural. Ark. R. Crim. P. 2.1; Folly v. State, 28 Ark. App. 98, 771 S.W.2d 306 (1989). The justification for an investigatory stop depends on whether under the totality of the circumstances the police have a particularized, specific, and articulable reason indicating that the person or vehicle may be involved in criminal activity. Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989).

In the Nottingham case, an officer received a phone call from the owner of a local Travel Mart alerting him of a possible DWI suspect in a red Ford pickup. The officer proceeded to the area and approached the suspect’s vehicle and found him asleep in the truck with a beer can. We found that the information provided by the owner acted as a catalyst for the officer to investigate which the officer had a duty to perform. Thus, we concluded that the officer’s actions were justified based upon reasonable suspicion pursuant to Ark. R. Crim. P. 3.1. Also, in the case of Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985), we found that an officer had a reasonable suspicion to make an investigatory stop when he spotted appellants’ truck at 2:00 a.m. traveling at ten miles an hour down a gravel road owned by International Paper but open to the public. The officer suspected that appellants could possibly have been head-lighting or spotlighting for deer.

The facts presented to the trial court in this case, with all presumptions favorable to the trial court’s ruling, Johnson v. State, 319 Ark. 78, 889 S.W.2d 764 (1994), are these: the owner of Monty’s Pawn Shop reported that a white male and black female had tried to pawn some jewelry which appeared to be stolen. A radio dispatch was sent to officers alerting them to “be on the look out for” a yellow Datsun pickup occupied by a white male and black female who had been attempting to sell possibly stolen jewelry. The dispatch described the vehicle, the occupants, and provided the license number of the vehicle.

Lieutenant Bond testified that he received the radio dispatch and subsequently spotted the vehicle matching the description. He testified that he stopped the vehicle because it was his understanding that “they had been down to Monty’s Pawn Shop and tried to sell some jewelry that appeared to have been stolen.” When asked what gave rise to his suspicion that the individuals were doing something wrong, Lieutenant Bond responded “[w]ell, after thirteen years with the Detective Bureau, we’d dealt with pawn shops quite a bit. They, any time they have someone who comes in there with an obviously expensive piece of jewelry who don’t, obviously don’t appear to be people who would have this type of jewelry normally, or a large quantity of jewelry and so forth creates, anything of a suspicious nature, they usually give us a call or some of them do.” Lieutenant Bond indicated that the pawn shops in the area had provided information in the past of illegal activity being attempted in their stores. Lieutenant Bond testified that after stopping the truck, he approached the vehicle and noticed a ring box on the front seat. Lieutenant Bond said that he then questioned the occupants of the vehicle.

Appellant argues that the person reporting to the police did not see a crime committed or have knowledge that a crime was being committed. Also, appellant asserts that there was no independent corroboration of the radio dispatch that the occupants of the vehicle were involved in any criminal activity. In arguing that the stop was unreasonable, appellant places great emphasis on the proposition that no one knew that a crime had been committed. However, the Supreme Court noted in U.S. v. Hensley, 469 U.S. 221 (1985), that “although the officer who issues a wanted bulletin must have a reasonable suspicion sufficient to justify a stop, the officer who acts in reliance on the bulletin is not required to have personal knowledge of the evidence creating a reasonable suspicion.” Id. at 231. Quoting from the Ninth Circuit, the Supreme Court further expressed “that effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.” Id. at 231. Also, in the cases of Terry v. Ohio, 392 U.S. 1 (1968); Nottingham, supra; and Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985), no one knew that a crime had been committed. Therefore, it is clear that it has never been a requirement that someone know that a crime had been committed before an officer can conduct an investigatory stop. As the Supreme Court noted in Adams v. Williams, 407 U.S. 143 (1972):

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be more reasonable in light of the facts known to the officer at the time.

As noted in Terry v. Ohio, 392 U.S. 1 (1968), one general interest present in the context of ongoing or imminent criminal activity is “that of effective crime prevention and detection.” In this case, it would have been impossible for the police to determine if the jewelry was stolen before appellant was stopped because the jewelry was in the possession of the suspected individuals. “Restraining police action until after probable cause is obtained would not only hinder the investigation, but might also enable the suspect to flee in the interim and to remain at large. Particularly in the context of felonies or crimes involving a threat to public safety, it is in the public interest that the crime be solved and the suspect detained as prompdy as possible.” U.S. v. Hensley, 469 U.S. 221, 229 (1985).

Here, Lieutenant Bond not only had the information from the dispatch but he also had personal knowledge that the local pawn shops had given reliable information in the past that was used by the police, and he confirmed the vehicle description, license number and identification of the occupants of the truck. Lieutenant Bond also observed a ring box on the front seat of the individuals’ vehicle before questioning the suspects. Based on the totality of the circumstances in this case, we cannot say that the trial court’s denial of appellant’s motion to suppress was clearly against the preponderance of the evidence. See Bliss v. State, 33 Ark. App. 121, 802 S.W.2d 479 (1991).

Affirmed.²

Cooper, Stroud, and Mayfield, JJ., agree. Jennings, C.J., and Griffen, J„ dissent.

1 This was simply the description broadcast over the radio, and there is no indication that it was intended to convey a malevolent purpose. Nevertheless, the dissent suggests that the report and the actions of the police were racially motivated. While we respect the dissenting judge’s sensitivity to such issues, there is nothing in the record to support that conclusion, nor does appellant herself suggest that the color of her skin, or the fact that she was in the company of a white male, played any role in the chain of events culminating in her arrest.

2 The dissent is simply wrong in suggesting that a case such as this should be dismissed upon revenal. The double jeopardy clause does not forbid retrial so long as the sum of the evidence offered by the State and admitted by the trial court — whether erroneously or not — would have been sufficient to sustain a guilty verdict. Nard v. State, 304 Ark. 159, 163-A, 801 S.W.2d 634, 637 (1990) (supplemental opinion denying rehearing). See also Crutchfield v. State, 306 Ark. 97, 104, 816 S.W.2d 884 (1991) (supplemental opinion granting rehearing). Considering all of the evidence in this case, there is substantial evidence to support the verdict. Consequently, if this court were to reverse based on appellant’s claim of trial error, it would be appropriate for this court to remand, leaving it to the prosecution to decide whether or not the appellant is to be retried.