State v. Allen , 2013 Ark. LEXIS 54 ( 2013 )

JIM HANNAH, Chief Justice.

11The State of Arkansas appeals a decision of the Garland County Circuit Court that the stop of Robert M. Allen’s vessel “undér ... the circumstances was unreasonable and violated [Allen’s] rights under the Fourth Amendment to the United States Constitution.” Upon stopping Allen and boarding his boat to perform a safety check, Sergeant Glenn Tucker of the enforcement division of the Arkansas Game and Fish Commission concluded that Allen was under the influence of alcohol. Sergeant Tucker arrested Allen, and he was charged with boating while intoxicated.

Allen entered a no-contest plea in the District Court of Hot Springs, Arkansas, and he appealed his conviction to the Garland County Circuit Court. In the circuit court, he filed a motion to dismiss, alleging that the “Arkansas- Game and Fish officers had no authority to stop and arrest him,” and that “there was a complete lack of probable cause for this Defendant’s [Allen’s] stop.” At the hearing on the motion, Sergeant Tucker testified that |2“[t]here was no probable cause or any violation of law that preceded the stop of Mr. Allen.” According to Sergeant Tucker, he stopped vessels, such as Allen’s, “to check for safety compliance, such as life jackets and other safety items that they are required to have on board their vessel.” The circuit court granted the motion, concluding that granting “a law1 enforcement officer the unfettered right to stop and check a vessel at will removes” the Fourth Amendment requirement that “the stop must be reasonable under the circumstances.” The circuit court found that where a vessel is “legally registered and illuminated, [and] ... being operated in an unremarkable fashion, by an adult with one adult passenger on an uncongested part of Lake Hamilton at 11:00 p.m. ... the stop of the Defendant’s pontoon boat” was “unreasonable and violated Defendant’s rights under the Fourth Amendment.” The decision of the circuit court is affirmed.

This court must first determine whether it has jurisdiction to hear the State’s appeal. See State v. Jenkins, 2011 Ark. 2, at 4, 2011 WL 143571. This court will nof consider an appeal by the State “unless the correct and uniform administration of the criminal law requires review by the court.” See Ark. R.App. P.Crim. 3(d). As a matter of practice,' this court only reviews State appeals that are narrow in scope and involve the interpretation of law. Jenkins, 2011 Ark. 2, at 4, 2011 WL 143571. We do not permit State appeals merely to demonstrate that the circuit court erred. Id. Moreover, this court will not accept an appeal by the State where the circuit court has acted within its discretion after making an evidentiary decision based on the particular facts of the case or even on a mixed question of law and fact, as those appeals do not require interpretation of our criminal rules with widespread ramifications. Jenkins, 2011 Ark. 2, at 5, 2011 WL 143571. [3At issue in the present case is whether, in the absence of objective facts supporting the stop or a plan embodying explicit neutral limitations, a law-enforcement officer’s practice of stopping vessels on bodies of water to perform a safety check constitutes an act of unfettered discretion by law enforcement that violates the Fourth Amendment to the United States Constitution. We concur with the State that the correct and uniform administration of the criminal law requires our review of this matter.

The State argues that Sergeant Tucker acted under section 27-101-105, which provides in relevant part as follows:

(a)(1)(A) It shall be the duty of every sheriff, deputy sheriff, state police officer, and enforcement officer of the Arkansas State Game and Fish Commission to enforce the provisions of this chapter....

(2) In the exercise of their duty to enforce the provisions of this chapter, they shall have the authority to stop and board any vessel subject to this chapter and to investigate any accident or violation involving vessels subject to this chapter.

Ark.Code Ann. § 27-101-105(a)(Z), (2) (Repl.2010).

Sergeant Tucker testified that he is a certified law-enforcement officer and that he stops boats for safety checks. He testified that “[tjhere was no determination on what boats I might pull over,” and that he was not “pulling over every boat for a safety check.” He said that “there was no plan in place” when he stopped Allen’s boat that evening.

“The Fourth Amendment, of course, ‘applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.’ ” Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Whenever a law-enforcement officer stops and restrains a person, the officer has “seized” that person, and the Fourth Amendment requires that the seizure be | Reasonable. Id.

The reasonableness of seizures that are less intrusive than a traditional arrest, see Dunaway v. New York, 442 U.S. 200, 209-210 [99 S.Ct. 2248, 60 L.Ed.2d 824] (1979); Terry v. Ohio, 392 U.S. 1, 20 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968), ‘depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ Pennsylvania v. Mimms, 434 U.S. 106, 109 [98 S.Ct. 330, 54 L.Ed.2d 331] (1977); United States v. Brignoni-Ponce, supra, 422 U.S. [873], at 878 [95 S.Ct. 2574, 45 L.Ed.2d 607]. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. See, e.g., 422 U.S. [873], at 878-883 [95 S.Ct. 2574].

A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, 440 U.S. 648, 654-655 [99 S.Ct. 1391, 59 L.Ed.2d 660] (1979); United States v. Brignoni-Ponce, supra, 422 U.S. [873], at 882 [95 S.Ct. 2574]. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.

Brown, 443 U.S. at 50-51, 99 S.Ct. 2637.

At issue is a brief stop by a law-enforcement officer to assure that a vessel complies with applicable safety requirements. It is a stop at the order of a law-enforcement officer and constitutes a seizure that is certainly less intrusive than a traditional arrest; however, it is a seizure and means that the law-enforcement officer is “lawfully present” and under a duty to act where the law enforcement officer reasonably suspects a crime has been or is about to be committed. See Ark. R.Crim. P. 3.1 (2012). A seizure under the Fourth Amendment must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual or that the seizure must be carried out under a plan embodying explicit, neutral limitations on the conduct of individual officers. See Brown, 443 U.S. at 51, 99 S.Ct. 2637. Regardless of how brief or slight the intrusion, or how weighty the public interest, “an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” Id.

Sergeant Tucker testified that, while he tried to stop and perform a safety check on as many vessels as he could in a given day, there was no plan and nothing to determine which boats he stopped. There were no specific, objective facts about Allen’s vessel to indicate that society’s legitimate interests required the seizure of Allen and his particular vessel. As the circuit court found, Allen’s vessel was being legally operated in an unremarkable fashion. Sergeant Tucker testified that he did not believe that he had “the unfettered discretion to pull over any boat at any time for any reason that [he desired],” but only to perform a safety check. However, this means that whether the stop is proper depends only on the law-enforcement officer’s subjective assertion of his or her purpose when the Fourth Amendment requires objective facts supporting the stop or a plan embodying explicit, neutral limitations. As the circuit court found, the practice of safety-check stops by law-enforcement officers in this case violates the Fourth Amendment.

Affirmed.

HART, J., concurs. DANIELSON, GOODSON, and HOOFMAN, JJ., dissent.