Pyles v. State

John B. Robbins, Judge.

On May 17, 1995, the appellant was found guilty of possession of a controlled substance (methamphetamine) with intent to deliver and was sentenced to ten years in the Arkansas Department of Correction. On appeal the appellant contends that the trial court erred in failing to grant his motion to suppress. We find no error and affirm.

The evidence showed that on May 19, 1994, several officers with the Fort Smith Police Department went to a residence in Barling to arrest the appellant on two misdemeanor warrants unrelated to the present case. After arriving at the residence, the officers were permitted entry by Jodie Cathers, the brother of appellant’s girlfriend. Mr. Cathers was informed of the warrants and then escorted the officers to a bedroom where the appellant was in bed. Officer Steve Scott informed appellant of the warrants and requested him to get dressed and accompany them to the living room. Officer Scott advised the appellant of his Miranda rights and attempted to do a “field search” of the appellant for weapons in the course of arresting him and taking him into custody.

During the search incident to arrest Officer Scott noticed a large bulge in appellant’s pocket. Appellant was asked what was in his pocket and he responded that it was a 35-millimeter film canister with film in it. Scott testified that the appellant attempted to surrender the film canister to Jodie Cathers and was evasive to the officer’s questions. Officer Scott took the canister from the appellant, opened it, and found three small packets of what was later identified as methamphetamine.

Appellant moved to suppress this evidence and contends on appeal that the trial court erred in failing to grant his motion. Appellant specifically argues on appeal that Ark. R. Crim. P. 12.1 did not justify a search of the container. He contends that only 12.1(a) would be applicable but that it could not apply to these facts because the search was not conducted for the officer’s protection, disputing the officer’s credibility.

In reviewing a trial court’s decision to deny an appellant’s motion to suppress evidence, we make an independent determination based on the totality of the circumstances and will reverse the decision only if it is clearly against the preponderance of the evidence. Dickerson v. State, 51 Ark. App. 64, 909 S.W.2d 653 (1995). Because the preponderance of the evidence turns heavily on the question of credibility, we defer to the superior position of the trial court in determining which evidence is to be believed. Folly v. State, 28 Ark. App. 98, 771 S.W.2d 306 (1989).

Arkansas Rule of Criminal Procedure 12.1 states:

An officer who is making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused for the following purposes only;

(a) to protect the officer, the accused, or others;

(b) to prevent the escape of the accused;

(c) to furnish appropriate custodial care if the accused is jailed; or

(d) to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense.

It appears that both Rule 12.1(a) and 12.1(d) were applicable to the fact situation of this case. The officers were conducting a lawful search incident to the execution of two arrest warrants. Pursuant to Rule 12.1(a), Officer Scott testified that the search for weapons was for the officers’ personal safety, and that he looked inside the film canister for their safety and to identify any items appellant was attempting to release to Mr. Cathers.¹ The trial court could have found that it was possible that the film canister contained a weapon such as a razor blade. See Jackson v. State, 34 Ark. App. 4, 804 S.W.2d 735 (1991). By virtue of the authorization for a search provided under Ark. R. Crim. P. Rule 12.1(a), we cannot say that the court’s denial of appellant’s motion to suppress is clearly erroneous.

The United States Supreme Court has held that once a lawful arrest has been made, a search incidental to the arrest may be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence; no further justification is required. United States v. Chadwick, 433 U.S. 1 (1977); United States v. Robinson, 414 U.S. 218 (1973). The Supreme Court expressed its rationale for such searches as follows:

A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.

Id. at 235-236.

Arkansas Rule of Criminal Procedure 12.1(d) is also applicable to the facts of this case. While it is true that state law may offer greater protection than the United States Supreme Court holds that our federal constitution requires, Arkansas cases have interpreted Rule 12.1(d) in the same manner and used the same rationale as the Supreme Court in Robinson. In Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982), our supreme court held that a search incident to arrest requires no additional justification, finding that a search of containers, whether open or closed, may be conducted pursuant to a lawful custodial arrest. Our supreme court has also said that Rule 12.1(d) allows officers to search for evidence of any crime, not just the crime for which an accused is being arrested. In Stout v. State, 304 Ark. 610, 615, 804 S.W.2d 686, 689 (1991), the supreme court stated, “[P]ursuant to Ark. R. Crim. P. Rule 12.1(d), a police officer who makes a lawful warrantless arrest is authorized to search the person or property of the accused to look not only for weapons but also fruits and instrumentalities of crime. Even if the fruits and instrumentalities of any other crime are found, those are properly seized.”

In the case of Holmes v. State, 262 Ark. 683, 561 S.W.2d 56 (1978), the supreme court reviewed a search conducted pursuant to a lawful arrest. In that case the officers were searching the appellant’s person when they discovered a piece of aluminum foil in the appellant’s pocket. The officers opened the piece of aluminum foil and discovered heroin inside. The appellant moved to suppress this evidence. Relying on Rule 12.1 and Chimel v. California, 395 U.S. 752 (1969), the court upheld the trial court’s denial of appellant’s motion holding that evidence of another crime discovered during a search incident to arrest may be properly seized and should not be suppressed.

In the present case, the officer was searching the appellant pursuant to a valid arrest warrant. The officer could search any container on appellant’s person pursuant to Rule 12.1(a), and once evidence of another crime was discovered in the container, it could be seized pursuant to Rule 12.1(d) under the authority of the cases cited above. The trial court properly denied appellant’s motion to suppress.

Affirmed.

Jennings, C.J., and Hays, S.J., agree. Griffen, Stroud, and Pittman, JJ., concur.

1 The concurring opinion implies that there was no common sense reason as to why the police officers should have had any concern for their safety in executing these mere misdemeanor warrants. The record, however, reveals that appellant was the principal suspect in a homicide case in which the victim’s throat had been slit or stabbed. The misdemeanor warrants afforded the police a means by which they could bring the appellant in for questioning.