Frette v. State

John Mauzy Pittman, Judge. Paul Frette was charged with violating Ark. Code Ann. § 27-23-113 (Supp. 1993), which prohibits a person from operating or being in physical control of a commercial motor vehicle while having alcohol in his system. His pretrial motion to suppress evidence obtained as a result of his arrest was denied. Pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, he entered a conditional guilty plea to the charge, reserving the right to appeal the denial of his motion to suppress. He was fined $250.00, plus costs, and his driver’s license was suspended for 120 days. Our review of the record requires us to conclude that his motion to suppress should have been granted; therefore, we reverse to permit appellant to withdraw his guilty plea as provided for in Rule 24.3(b). Appellant was arrested on June 15, 1995, based on information provided by a tip called in to the dispatch office of the Spr-ingdale Police Department by a person identifying himself as Jerry Smith, a truck driver from Jonesboro, Georgia. Smith reported that he had seen an older man drinking beer while seated behind the wheel in the cab of a red tractor-trailer that was parked in a commercial truck parking lot behind the McDonald’s restaurant. Based solely upon the information provided by the dispatch office, an officer was sent to the location to investigate and found appellant seated in the driver’s position in the parked truck. The officer approached the driver’s side of the truck and ordered appellant to get out. When appellant exited his vehicle, the officer noted an odor of intoxicants and observed appellant’s poor balance. The officer ordered appellant to perform field sobriety tests. When appellant failed all of the officer’s field sobriety tests, he was placed under arrest and transported to the Springdale Police Department for booking where he made incriminatory statements and registered .08 on a breathalyzer test. Appellant contends that prior to the stop, the officer observed nothing that would indicate wrongful activity on appellant’s part and that the trial court erred in denying his motion to suppress because the arresting officer lacked reasonable suspicion to stop him. The trial court found that appellant was lawfully stopped and detained and denied appellant’s motion to suppress evidence as a result of the stop. Arkansas Rule of Criminal Procedure 3.1 provides that 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, or 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. “Reasonable suspicion” is defined under Rule 2.1 as “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.” Justification for an investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity. United States v. Cortez, 449 U.S. 411 (1981); Terry v. Ohio, 392 U.S. 1 (1967); Johnson v. State, 319 Ark. 78, 889 S.W.2d 764 (1994); Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied 459 U.S. 882 (1982). The reliability of an informant reporting possible criminal activity may be shown by police observations that tend to corroborate the information provided. Alabama v. White, 496 U.S. 325 (1990); Bliss v. State, 33 Ark. App. 121, 802 S.W.2d 479 (1991). However, an accurate description of a particular vehicle, standing alone, does not establish an informant’s reliability, see Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988), and the mere fact that a caller identifies himself in no way establishes his trustworthiness, see Evans v. State, 33 Ark. App. 184, 804 S.W.2d 730 (1991). The informant in the present case was a person unknown to and unseen by law enforcement officers, who had not previously provided information to them, and was not otherwise established to be rehable. Cf. Adams v. Williams, 407 U.S. 143, 146-47 (1972) (informant known to police officer personally provided information to officer that was immediately verifiable at the scene; “. . .informant might have been subject to immediate arrest for making a false complaint had [police officer’s] investigation proved the tip incorrect”); Brooks v. State, 40 Ark. App. 208, 212, 845 S.W.2d 530 (1993) (citizen informant, not previously known to police officer, came forward and personally provided to officer information “. . .relating criminal activity that he had observed [and] supplied the officer with the description of the vehicle, its occupants and its license number”; prior to stop of vehicle, police officer verified informant’s description of vehicle, its license number, and number of occupants). Here, the information given by the informant was limited to a description of a vehicle, its location, and that it was occupied by an elderly man seen drinking. In reviewing a trial court’s denial of a motion to suppress evidence, we make an independent determination based on the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996). We hold that appellant’s motion to suppress should have been granted. Kaiser v. State; supra; Evans v. State, supra. This does not mean that police must verify the reliability of an informant before conducting an investigation based on the information provided by the informant, as the information may be a “catapult to launch” an investigation. Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989). Upon police investigation and independent verification of the information provided, reasonable suspicion may be established. Id. However, conspicuously absent from the case before us is any police investigation or reasonable suspicion before the officer made an investigatory seizure. The State argues that the officer acted under the authority of Ark. R. Crim. P. 2.2 which permits a law enforcement officer to request a person to furnish information in investigation of a crime; and that there was not a “seizure” by the officer approaching the vehicle to question appellant. The State relies on Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990), in which the Arkansas Supreme Court found that it was not a seizure under the Fourth Amendment for a police officer to approach a car parked in a public place to determine whether there was anything wrong. However, the court in Thompson held that there was not a seizure, noting that there was no evidence that the officer restrained the defendant’s liberty by means of physical force or a show of authority, as the officer did not order the defendant out of his vehicle until after the officer noticed an odor of alcohol and had reasonable suspicion. The present case, however, is distinguishable from Thompson because here the officer ordered appellant out of his truck before making any investigation or establishing reasonable suspicion. Only after appellant stepped from his truck did the officer first smell intoxicants and observe poor balance sufficient to have reasonable suspicion. Whether a person has been seized within the meaning of the Fourth Amendment depends on whether, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Phillips v. State, supra. A “seizure” occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Thompson v. State, supra; Cf. Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997). We conclude that a “seizure” occurred in this case by the officer ordering appellant to step from his vehicle, so that this was an investigatory stop under Rule 3.1, and not a Rule 2.2 request for information. Thompson v. State, supra; see Phillips v. State, supra; accord Popple v. State, 626 So.2d 185, 187 (Fla. 1993) (police officer approached defendant, who was seated in vehicle, in order to request information; defendant seized when officer directed defendant to exit vehicle). The dissenting opinion maintains that this seizure of appellant was reasonable under the circumstances for reasons having to do with officer safety. This analysis is flawed for two reasons. In the first place, the informant did not provide any information to the Springdale Police Department that would give rise to a reasonable suspicion that the appellant was armed with a weapon of some sort or was otherwise presently dangerous to the officer. Cf. Adams, 407 U.S. at 145 (informant told police officer that suspect “had a gun at his waist”). It is true, as the dissenting opinion points out, that when the officer initially approached appellant, he was seated in the cab of an eighteen-wheel tractor-trailer truck. According to the dissenting opinion, this situation posed a danger to the officer’s safety and, therefore, provided the legal basis for the officer’s seizure of appellant by ordering him to get out of the cab of the tractor-trailer truck. This is the second flaw in the dissent’s analysis — it is applicable in every “officer approaches car” case. Every time a police officer approaches an individual seated on the driver’s side of a parked vehicle of any size, the officer can always truthfully state that he was concerned for his safety in that the individual could try to run over him or could produce a firearm or other weapon from the interior of the passenger compartment of the vehicle. Police officers can order the driver of a vehicle and any passengers to exit the vehicle; however, a police officer may do so only after having validly stopped the vehicle. See Maryland v. Wilson, 117 S.Ct. 882 (1997). Appellant finally contends that the facts to which he stipulated and the facts recited by the prosecuting attorney were insufficient to support the charge against him and that the trial court erred in accepting his guilty plea. We do not address these issues as they are not properly before this court. When one pleads guilty pursuant to Rule 24.3(b), the only claim cognizable on direct appeal is a challenge to the denial of a pretrial motion to suppress illegally obtained evidence. See Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994); Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990); Fullerton v. State, 47 Ark. App. 141, 886 S.W.2d 887 (1994). Reversed and remanded. Arey, Rogers, and Stroud, JJ., agree. Crabtree and Meads, JJ., dissent.