Burks v. State , 362 Ark. 558 ( 2005 )

Betty C. Dickey, Justice.

Appellant James Burks was convicted of possession with intent to deliver marijuana, sentenced to a prison term of twenty years, and fined fifty thousand dollars. Before trial, he moved to suppress drug evidence that the police had seized from his car after a traffic stop on an interstate highway. The trial court denied the motion, and Burks now appeals. He argues that the traffic stop was invalid, either because it was not supported by probable cause or because it was the product of racial profiling, and that his continued detention while the police ran a drug dog around his car was unreasonable in violation of the Fourth Amendment and Ark. R. Crim. P. 3.1 (2004). We affirm.

Arkansas State Trooper Olen Craig and Deputy Matthew LaMora with the Crawford County Sheriff s Department testified to the following set of facts. At 2:56 in the morning, Craig and LaMora were parked on the side of the highway when they saw Burks drive off the left side of the road before swerving over to exit on the right. Concerned that he might be intoxicated, Craig followed Burks to a gas station but was unable to determine if he was impaired. He radioed LaMora, who was now parked near the entrance to the highway, and suggested that he watch for Burks’ car. When Burks re-entered the highway, LaMora began to follow him. About a quarter of a mile later, he failed to obey a “Merge Now” sign, and LaMora pulled him over.

Burks handed LaMora his license and the rental agreement for the car that he was driving. The rental agreement specified that the car was due to be returned the day before and that it was not to be driven outside of California and Arizona, but Burks told LaMora that he was driving east to visit New York City. Burks appeared anxious to LaMora and evasive with his answers. LaMora went to his patrol car, ran a check on Burks’ license and discovered that he had been arrested for a firearms offense. Returning to Burks, LaMora handed him a warning ticket and asked him if he would consent to a search of his car. When Burks refused, LaMora advised him that he was going to run a drag dog around the outside of the vehicle. The dog alerted around the rear of Burks’ car; LaMora opened the tmnk and found seventy pounds of marijuana inside.

Burks first argues that the traffic stop is invalid because it was not supported by probable cause. In order to make a valid traffic stop, a police officer must have probable cause to believe that a traffic law has been violated. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). Probable cause is defined as “facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.” Id. Here, LaMora testified that he saw Burks drive past a “Merge Now” sign without merging. Failing to obey a traffic control device is a violation of Ark. Code Ann. § 27-52-103 (Repl. 1994). Burks’ traffic stop was supported by probable cause and was legally valid.

Burks also argues that the traffic stop was invalid because it was the product of racial profiling. Citing State v. Segers, 172 N.J. 481, 799 A.2d 541 (2002), he asserts that he made aprima facie case of racial motivation for the stop based on police statistics from Crawford County, and that the State failed to meet its burden of providing a race-neutral reason. The trial court, however, never made a ruling on the statistics, and this court has repeatedly stated that we will not address an issue that was not ruled on by the court below. State Farm Fire & Casualty Company v. Ledbetter, 355 Ark. 28, 129 S.W.3d 815 (2003).

Burks next argues that, even if the initial traffic stop were valid, the drug evidence should nonetheless be suppressed because he was unreasonably detained while LaMora ran the drug dog around his car. Ark. R. Crim 3.1 (2004) addresses the validity of a detention without arrest:

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 ... a felony. . . . 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 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.” Ark. R. Crim P. 2.1. Reasonable suspicion depends on objective facts, and it exists when “under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity. Laime, 347 Ark. at 155. An officer making a traffic stop must develop reasonable suspicion to detain before the legitimate purpose of the traffic stop has ended. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004).

This court addressed similar issues in Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001), and Sims v. State, supra. In Laime, the police pulled over a van for driving below the speed limit in the left lane. When the police officer separately asked the van’s driver and its passenger where they were going, both said that they were driving to Little Rock to have dinner with some friends, but each said that the other knew who the friends were and where they were to meet them. Id. The van’s driver became more nervous and agitated as the traffic stop progressed and became quite angry when the police asked permission to search the vehicle. Id. In addition, a background check revealed a drug conviction that the driver had previously denied having. This court held that these facts gave rise to reasonable suspicion. Id.

In Sims, supra, during a valid traffic stop made midday, the police noticed that the driver was nervous and sweating and thought it was strange that he volunteered an odd comment about having just been to Wal-Mart to buy a swing set. After telling Sims that the traffic stop was over, the police then decided to run a drug dog around the car. We held that reasonable suspicion to detain did not exist, primarily because nervousness alone does not give rise to reasonable suspicion. Id.

This case is more like Laime than Sims. Although LaMora noticed that Burks appeared nervous and agitated, this observation was not the sole basis of his decision to detain. The rental agreement that Burks handed LaMora specified that the car was not to be driven outside of California and Arizona and that it was due to be returned in California the day before the traffic stop occurred. Burks was not only driving the car outside of the permitted states, he was half a continent away, heading in the opposite direction, and doing so the day after the car should have been returned. The State suggested at oral argument that this could have given LaMora reason to suspect that the vehicle was stolen. Under the totality of the circumstances, we hold that these facts establish “specific, particularized, and articulable reasons” that criminal activity was afoot.

This case is distinguishable from Lilley v. State, 362 Ark. 436, 208 S.W.3d 735 (2005). In Lilley, we focused on when the traffic stop was over and held that reasonable suspicion did not exist based on the fact that Lilley was nervous, his car smelled like air freshener, the rental agreement was for one-way travel, and the car was rented in another person’s name, although Lilley was listed as an additional driver. Taken as a whole, these facts are seemingly innocent. In contrast, the facts in the present case at the time the traffic stop was over suggested that the rental car had been stolen because it was not only overdue but was also being driven far away from the area in which it was meant to be returned.

Finally, Burks maintains that the use of a drug dog violates the prohibition against unreasonable searches and seizures found in the Fourth Amendment of the United States Constitution and Article 2, section 15 of the Arkansas Constitution. The use of a drug dog during a traffic stop does not constitute an illegal search under the federal constitution. Illinois v. Caballes, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Because we hold that law enforcement had reasonable grounds to detain, we do not address whether a dog sniff is an illegal search under the state constitution.

Affirmed.

FIannah, C.J., Glaze and Imber, JJ., dissent.