Szabo v. State ( 2015 )

Cite as 2015 Ark. App. 512
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-933
AARON JAMES SZABO Opinion Delivered September 23, 2015
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. CR-2014-462-1]
STATE OF ARKANSAS HONORABLE WILLIAM A. STOREY,
APPELLEE JUDGE
AFFIRMED
CLIFF HOOFMAN, Judge
Aaron James Szabo appeals after he entered a conditional plea on the charge of Driving
While Intoxicated—First Offense and was sentenced by the Washington County Circuit
Court (“trial court”) to a fine of $325, court costs of $300, and booking/administrative fee
of $20.1 On appeal, appellant contends that (1) the police officer illegally seized appellant by
1
While the trial court orally pronounced that it sentenced appellant to one day in
county jail with one day jail credit, the written sentencing order does not reflect that the trial
court sentenced him to any time in county jail. Our supreme court has held that when there
is a discrepancy between the written sentencing order and the oral pronouncement of
sentence, it is the written sentencing order that controls. See Vance v. State, 2011 Ark. 243,
383 S.W.3d 325. Additionally, we note that appellant’s sentence is, therefore, illegal on its
face. Arkansas Code Annotated section 5-65-111(a)(1) requires a minimum of twenty-four
hours’ imprisonment unless the trial court includes reasons for an order of public service in
lieu of jail in the court’s written order or judgment. Although appellant’s sentence is illegal,
the statute authorizing the correction of illegal sentences at any time does not permit us to
increase his sentence to comply with the statutory minimum absent an appeal or cross-appeal
from the State. Blackwell v. State, 2015 Ark. App. 96, 455 S.W.3d 848; King v. State, 2012
Ark. App. 94; Cook v. State, 46 Ark. App. 169, 878 S.W.2d 765. As no such appeal was
tendered here, we cannot address the legality of appellant’s sentence. Id.
Cite as 2015 Ark. App. 512
opening the driver’s door and positioning himself between the open door and the seat
occupied by appellant; (2) the police officer had no objective reason to believe that appellant
was in immediate need of medical assistance and imminent danger of death or serious bodily
harm, and thus, no exigent circumstances existed authorizing the officer’s opening of the car
door and entry into appellant’s vehicle; (3) the police officer illegally searched appellant’s
vehicle by opening the driver’s door and leaning into appellant’s vehicle; and (4) the police
officer illegally seized appellant by opening the driver’s door, entering appellant’s vehicle,
turning off appellant’s vehicle, and removing and taking possession of the keys to the vehicle.
We affirm.
Appellant appealed his case for driving while intoxicated from the Fayetteville District
Court to the Washington County Circuit Court on March 6, 2014. On April 25, 2014,
appellant filed a motion to suppress illegally obtained evidence, and a hearing was held on
June 16, 2014. At the hearing, Corporal Greg Dawson testified that he was patrolling on
March 2, 2013, at approximately 4:30 in the morning when he noticed appellant’s vehicle
parked in a parking lot on Block Street with its lights on. After parking his vehicle a few spots
from appellant, he walked up to appellant’s car and noticed that the vehicle was “running,”
and appellant was in the driver’s seat “laid back, somewhat leaning over the center.” After
knocking on the window several times without any response or movement, Corporal Dawson
opened the unlocked door and leaned into the vehicle. On direct examination, he testified
that he “leaned in, shook the driver, asked him if he was awake, didn’t get a response. That’s
when I noticed an odor of intoxicants from inside that vehicle, figuring that he was
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Cite as 2015 Ark. App. 512
intoxicated that’s why I turned the vehicle off.” Corporal Dawson knew appellant was
breathing, but he did not know if he was just asleep or unconscious. While he did not
eliminate his medical concerns, once he smelled the alcohol, he thought that appellant was
probably “drunk” and “passed out.” After not receiving any response from appellant, despite
several attempts to wake him, Corporal Dawson testified that he “did the sternum rub on
him.”
On cross-examination, appellant’s counsel questioned Corporal Dawson regarding his
written report that did not mention an “odor of intoxicants” until the third paragraph, in
which he described appellant’s behavior after exiting the vehicle. Corporal Dawson explained
that he did not remember whether he shook appellant before or after he turned the vehicle
off and placed the keys on top of the vehicle. However, he testified that he remembered that
he noticed the smell of alcohol before he turned the vehicle off because he was concerned
that, if appellant woke up with the engine running, appellant would immediately try to drive
with him in the doorway. After observing the video from his vehicle’s dashboard camera that
was played during the hearing, he admitted that he had turned the vehicle off before he
verbally tried to wake appellant but did not remember when he started to shake appellant.
However, he admitted that “[m]ore than likely” he had turned the vehicle off before he
attempted to wake appellant either verbally or by physically shaking him. Additionally, at
some point after Corporal Dawson opened the door, he heard appellant snoring. After
appellant finally woke up, he was subsequently arrested for driving while intoxicated by
Officer Ryan Schleiff, who testified that he responded to the scene after appellant was already
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Cite as 2015 Ark. App. 512
outside of the vehicle and had performed the field-sobriety tests.
After appellant’s counsel orally argued that the search and seizure violated appellant’s
Fourth Amendment right, the trial court made the following ruling:
I suppose the real issue here is whether or not opening the door is, one, a seizure and
the officer going into the interior of the vehicle, of the Defendant’s vehicle is a search.
That’s, at least as I understand it, the issue. I think it is of some significance here that
one, this occurred in the early morning hours of March 2nd, and that seems to be
always a problem in these cases that we don’t -- they don’t get to this Court for over
a year and memories do tend to fade.
But nonetheless, I think that the testimony of Corporal Dawson is important
to the extent that he did consider when he approached the vehicle -- again the facts
are not in dispute at all, about 4:00 a.m. on March 2nd, last year. At that particular
time of day with the motor of the vehicle running, with the Defendant, Mr. Szabo
apparently unconscious or sound asleep, described it a variety of ways, unresponsive
when the officer bangs on the window or taps on the window or beats on the
window. Given the fact, at least in my view, that he at least, he, being the police
officer, Corporal Dawson considered the fact that it may be a medical problem,
although clearly he didn’t know and as it turned out it was not, so I don’t see any
particular need to include that in the report.
But I think it was clearly appropriate to continue the investigation by opening
the door, and to some extent it can be argued and I think with some force, that the
situation as presented and as described may well have constituted exigent
circumstances. So once he opens the door, he, being Officer Dawson, smells the odor
of alcohol and then clearly has a right under 3.1 to continue his investigation by seizing
the Defendant and so in my judgment -- and it’s an interesting case. And perhaps
there are obviously not a number of cases in any jurisdiction that are identical, but
nonetheless, I feel as though the seizure did not occur until the keys were removed
from the ignition, the car was turned out -- again, turned off after the odor of alcohol
was apparent. So in my judgment the State has met its burden and the motion is
denied.
After appellant timely filed his appeal, this court ordered appellant to file a supplemental
addendum to provide an exhibit of the video recording of the officer’s dashboard camera to
the members of our court. Szabo v. State, 2015 Ark. App. 354. Appellant properly filed a
supplemental addendum, and this appeal followed.
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Cite as 2015 Ark. App. 512
Appellant contends on appeal that (1) the police officer illegally seized appellant by
opening the driver’s door and positioning himself between the open door and the seat
occupied by appellant; (2) the police officer had no objective reason to believe that appellant
was in immediate need of medical assistance and imminent danger of death or serious bodily
harm, and thus, no exigent circumstances existed authorizing the officer’s opening of the car
door and entry into appellant’s vehicle; (3) the police officer illegally searched appellant’s
vehicle by opening the driver’s door and leaning into appellant’s vehicle; and (4) the police
officer illegally seized appellant by opening the driver’s door, entering appellant’s vehicle,
turning off appellant’s vehicle, and removing and taking possession of the keys to the vehicle.
The State disagrees, however, and contends that the trial court did not err in denying
appellant’s motion to suppress because Corporal Dawson “rightly exercised his function as a
community caretaker and opened the door to check on appellant.” We agree.
On review of a trial court’s denial of a motion to suppress evidence, this court reviews
the trial court’s factual determinations for clear error, while reviewing its legal conclusions de
novo. James v. State, 2012 Ark. App. 118, 390 S.W.3d 95. Consistent with this standard, this
court defers to the superior position of the trial court to determine the credibility of witnesses
and to resolve evidentiary conflicts, but resolves legal questions through an independent
determination based on the totality of the circumstances. Id.
This court has previously recognized the existence of an officer’s “community
caretaking function.” Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988). In Cady
v. Dombrowski, the United States Supreme Court held that a search of the trunk of a disabled
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vehicle without a warrant did not violate the Fourth and Fourteenth Amendments, explaining
that local police officers frequently “engage in what, for want of a better term, may be
described as community caretaking functions, totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a criminal statute.” 413
U.S. 433, 441 (1973). In Blakemore, a deputy approached a vehicle with its motor running
and lights on. Blakemore, supra. He observed that appellant was “either asleep or passed out”
in the front seat. Blackemore, 25 Ark. App. at 336–37, 758 S.W.2d at 426. After the deputy
repeatedly knocked on the window, appellant woke up, and the deputy smelled alcohol and
observed appellant stumble when he got out of his vehicle. Id. This court held that
“[a]lthough he did not see any blood or physical injuries, Deputy Rushing did not know if
the appellant was ill, drunk, or merely asleep. Given these circumstances we believe that
Deputy Rushing, as part of his community caretaking function, was justified in knocking on
the appellant’s window to question him and make an inquiry.” Id. at 340, 758 S.W.2d at
428–29.
As in Blakemore, Corporal Dawson approached appellant’s vehicle and observed
appellant in the front seat, unconscious, with the motor running. After appellant failed to
respond to Corporal Dawson knocking on his window, Corporal Dawson continued his
community caretaking function in opening the unlocked door. The trial court specifically
found that once Corporal Dawson opened the door, he smelled an odor of alcohol. Rule 3.1
of the Arkansas Rules of Criminal Procedure (2014) 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
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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.
Our courts have determined that a possible driving-while-intoxicated offense falls within the
ambit of the rule. Murrell v. State, 2011 Ark. App. 311. Thus, after Corporal Dawson smelled
the alcohol, Rule 3.1 permitted Corporal Dawson to detain appellant for further investigation,
and the trial court properly denied appellant’s motion to suppress.
Affirmed.
GLADWIN, C.J., and WHITEAKER, J., agree.
Norwood & Norwood, P.A., by: Jon Nelson, Alison Lee, and Doug Norwood, for appellant.
Leslie Rutledge, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
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