Muhammad v. State , 64 Ark. App. 352 ( 1998 )

Margaret Meads, Judge.

Karriem Muhammad entered a conditional plea of guilty to manufacture, delivery or possession of a controlled substance (cocaine) pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure and was sentenced to forty years in the Arkansas Department of Correction. Appellant’s sole issue on appeal is that the trial court erred in denying his motion to suppress the cocaine found on his body because there was no reasonable articulable suspicion of criminal activity justifying a pat-down search of his person by the officer who stopped him for a traffic violation. We disagree and affirm.

When reviewing the trial court’s denial of a motion to suppress, the appellate courts make an independent determination based on the totality of the circumstances and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997); Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). In making this determination, the evidence is viewed in the fight most favorable to the State. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998).

Arkansas State Trooper Jeffery Thomas testified for the State that on March 21, 1996, he stopped appellant for following too closely behind an eighteen-wheeler tractor-trailer rig. Thomas said that appellant was extremely nervous, his lips were trembling, and he stood very still and erect. Although he said that he was going to Little Rock to visit his father for his birthday, appellant was unable to state his father’s age when asked.

In conjunction with the traffic stop, Trooper Thomas ran National Crime Information Computer (NCIC) and Interstate Identification Index (Triple I) checks on appellant, from which he learned that appellant had a criminal history of sale or possession of a dangerous drug and at least one arrest for aggravated robbery. Thomas then requested and received appellant’s written consent to search the vehicle. At some point, appellant was issued a warning citation for following too closely. Contrary to the dissent’s assertion that Thomas detained appellant after issuing the warning citation, the record is unclear as to when the citation was actually issued, as evidenced by the following colloquy:

Q Did you give him a warning citation?

A Yes, I did. I issued him a written warning ticket for a violation.

Q Did he seem to become more calm or anything at that point in time?

A No, he didn’t. Actually, I didn’t see any noticeable change in the demeanor after making the statement to him that I was going to issue a warning.

While waiting for back-up to arrive, Thomas performed a pat-down search of appellant. When he got to appellant’s belt line, Thomas felt a rigid object that he believed to be the corner of a firearm sticking out of appellant’s waistband. Although appellant attempted to remove Thomas’s hand from the object, Thomas discovered a brick of compressed material wrapped in brown duct tape protruding from appellant’s groin area inside what appeared to be a lady’s girdle.

On appeal, appellant does not contend that Thomas lacked authority to make the initial stop for following too closely; instead, he argues that Thomas had no authority to conduct a pat-down search of his person because there was no reasonable, articulable suspicion of criminal activity. We disagree. Thomas had the requisite reasonable suspicion necessary to detain appellant further and frisk him pursuant to Ark. R. Crim. P. 3.1 and 3.4.

Rule 3.1 of the Arkansas Rules of Criminal Procedure provides:

A law enforcement 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 (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

“Reasonable suspicion” is defined in Rule 2.1 of the Arkansas Rules of Criminal Procedure as “a suspicion 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.” The existence of a reasonable suspicion must be determined by an objective standard, and due weight must be given to the “specific reasonable inferences” an officer is entitled to derive from the situation in light of his experience as a police officer. Coffman v. State, 26 Ark. App. 45, 759 S.W.2d 573 (1988) (citing Terry v. Ohio, 392 U.S. 1 (1968)). In making this determination, the trial court may consider the factors listed in Ark. Code Ann. § 16-81-203 (1987). Those factors most relevant to this case include:

(1) The demeanor of the suspect;

(2) The gait and manner of the suspect;

(3) Any knowledge the officer may have of the suspect’s background or character;

(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in fight of all the other factors;

(13) The suspect’s apparent effort to conceal an article ....

Although Trooper Thomas acknowledged that he did not have reasonable suspicion to search appellant’s vehicle, appellant gave written consent for the search when asked to do so and does not contend on appeal that his consent was anything but voluntary. While the dissent believes otherwise, it is not necessary for an officer to have reasonable suspicion to request consent to search, see Johnson v. State, 27 Ark. App. 54, 766 S.W.2d 25 (1989); therefore, the request for consent was clearly within Thomas’s purview. Thomas was alone with appellant while awaiting back-up officers to assist in the consensual search of appellant’s automobile, and he testified that he did not feel 100% out of danger, because “there were some signals there.” Thomas, a ten-year veteran of the Arkansas State Police, testified that based on his experience he suspected that appellant was armed, due to appellant’s extreme nervousness, his rigid posture, his trembling Hps, his manner of dress, and appellant’s criminal background. With appellant’s previous felony conviction for aggravated robbery, his possession of a firearm would violate Ark. Code Ann. § 5-73-103(a)(1) (Repl. 1997) (felon in possession of a firearm), and such a violation would constitute a felony. Viewing the totality of the circumstances, Trooper Thomas could certainly reasonably suspect that appellant was armed with a weapon, thereby committing a felony. Therefore, appellant’s detention was proper under Rule 3.1.

Rule 3.4 of the Arkansas Rules of Criminal Procedure, which is used in conjunction with Rule 3.1, provides:

If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.

We find that Trooper Thomas could reasonably believe that appellant was armed; thus, he was justified in searching appellant’s person pursuant to Rule 3.4 to ensure his safety. Thomas testified that when he searched appellant’s belt line, he felt a “rigid” object, which he believed to be a weapon. It was only when he had removed the object that he discovered it was a brick of what later proved to be cocaine.

The dissent cites Knowles v. Iowa, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), and Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985), in support of its position that the search of appellant’s person violated his Fourth Amendment rights. Both of these cases are distinguishable from the case at bar not only because they involve vehicle searches rather than searches of a person, but also because in neither case had consent been granted. Here, Trooper Thomas asked appellant for consent to search his car; appellant agreed and signed a consent form. The pat-down search of appellant’s person to ensure the officer’s safety occurred after consent had been given to search the vehicle, as stated above.

The dissent also states that “the record does not show that the NCIC and Triple I information identified appellant as likely to be armed and dangerous,” and surmises that “one would think that the information supplied to field officers would include a notice to that effect.” It then broadly concludes “[t]he fact that Thomas mentioned no such notice dictates the conclusion that none was given because none was deemed warranted.” These statements are purely speculative and have no basis from the record before us. To reach the conclusion which the dissent has reached is unfounded and imprudent.

Moreover, the dissent misleads the reader concerning appellant’s “profile” when he relates the trooper’s testimony about the totality of the circumstances which justified the pat-down search. The actual exchange between appellant’s counsel and Trooper Thomas is as follows:

Q That is a profile situation, is that right? We have got a guy that is nervous. We have a person who is a convicted felon of narcotics. That is creating a profile of somebody who is conducting criminal activity, in this case trafficking in narcotics, and that is the reason that you wanted to search, isn’t that true?

A My search was based on the information that was available to me by his demeanor and the pat down was conducted solely for officer’s safety at the point I began to pat down.

Q My question is, Officer, but those circumstances created a profile situation where you believed there were drugs in that car and that is why you wanted to search?

A If you want to refer to it as a profile that’s fine. I don’t refer to that as a profile.

Trooper Thomas articulated the reasons on which he based his search and made it clear that the basis was not a “profile.”

Having made an independent determination based on the totality of the circumstances, we find that the trial court properly denied appellant’s motion to suppress; therefore, we affirm.

Affirmed.

Arty, Jennings, and Bird, JJ., agree. Griffen and Roaf, JJ., dissent.