Hoay v. State

Josephine Linker hart, Judge. Appellant, James Hoay, pleaded guilty to the crime of possession of methamphetamine and was sentenced to eighteen months in the Arkansas Department of Correction to be followed by five years’ suspended imposition of sentence. Pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, he appeals from the circuit court’s denial of his motion to suppress evidence seized from him, arguing that the court erred in concluding that the police had reasonable suspicion to stop his vehicle. Further, he argues that because he was arrested on an invalid arrest warrant after the stop, the items seized in the search incident to that arrest should be suppressed. We agree with appellant’s latter argument and reverse and remand. Jeff Midgett of the Clay County Sheriff s Department testified that on July 9, 1999, during daylight hours, he followed a gray Chevrolet pickup truck for approximately two miles as it traveled south on Highway 135. While following the truck, he saw the truck move to the right of the fog fine, cross the center fine twice, and then drive to the right of and over the fog line for approximately one-half to one mile. Midgett testified that he stopped the truck because he believed that the driver could have been under the influence of intoxicants or a controlled substance. As the truck pulled to the side of the road, Midgett saw the driver “doing a lot of frequent moving around, bending over . . . toward the floorboard. ...” Midgett walked up to the driver’s side of the truck and asked appellant, the sole occupant of the truck, for his license. Midgett did not “smell any odor of alcohol at that time.” Through his own dispatcher, Midgett checked appellant’s license with NCIC, which, according to Midgett, is a nationwide list of persons who have felony warrants for arrest, and found that a warrant for appellant’s arrest had been issued in Greene County. Midgett then contacted two different dispatchers for Greene County, one by telephone and one by radio, and Midgett was informed by both dispatchers that they possessed an arrest warrant for appellant based on his failure to appear on a felony charge for possession of a controlled substance. Midgett asked appellant to step out of his truck because he had a warrant for his arrest. After Midgett handcuffed appellant, he saw a bulge in appellant’s sock near his ankle. He removed from the sock a clear plastic bag containing a smaller plastic bag that contained a rock-like substance he believed to be methamphetamine. Midgett testified that this search was incident to appellant’s arrest on the warrant, and he arrested appellant only on the warrant. Midgett also testified that if it had not been for the warrant, he would have had appellant perform a field-sobriety test because appellant’s speech was slurred. Appellant, however, introduced a docket sheet showing that the arrest warrant was issued on February 11, 1999, and set aside on April 20, 1999. Midgett testified that he did not know that the warrant was set aside, that this was his typical method for verifying warrants, and that he had no problems with Greene County in the past, as he had made several felony and misdemeanor arrests on Greene County warrants. After hearing the arguments of counsel on appellant’s motion to suppress, the court determined that because of appellant’s erratic driving, Midgett properly stopped appellant’s truck. The court further determined that in making the arrest on the invalid arrest warrant and searching appellant incident to that arrest, Midgett acted in good faith. Consequently, the court denied appellant’s motion to suppress. First, appellant argues on appeal that Midgett lacked reasonable suspicion to stop his truck, and therefore, the evidence seized during the search of his clothing should be suppressed. In reply, the State argues that appellant’s driving gave Midgett reasonable suspicion to believe that he was driving while intoxicated. [ls 2] We conclude that, based on the totality of the circumstances, Midgett had reasonable suspicion to stop appellant for driving while intoxicated. Pursuant to Rule 3.1 of the Arkansas Rules of Criminal Procedure, “[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 (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.” In reviewing the denial of a motion to suppress, this court makes an independent examination based on the totality of the circumstances. Frette v. City of Springdale, 331 Ark. 103, 108, 959 S.W.2d 734, 736 (1998). We conclude that appellant’s crossing of the center line and fog line provided reasonable suspicion to stop appellant to determine whether he was driving while intoxicated. Piercefield v. State, 316 Ark. 128, 133, 871 S.W.2d 348, 351 (1994). Second, appellant contends that the substance seized should be suppressed because he was arrested on an invalid arrest warrant, and therefore, the search was not incident to a lawful arrest. In response, the State argues that the good-faith exception to the exclusionary rule applies, thus saving from suppression the evidence seized during the search incident to his arrest. We conclude that the State’s failure to present evidence regarding why the invalid warrant remained outstanding, particularly, whether it was the fault of the police or the court, precludes application of the good-faith exception to the exclusionary rule. In United States v. Leon, 468 U.S. 897 (1984), the United States Supreme Court concluded that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable rebanee on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Leon, 468 U.S. at 922. And in Arizona v. Evans, 514 U.S. 1 (1995), the Court was faced with whether to exclude evidence seized during an arrest or apply the good-faith exception to the exclusionary rule when, because of an error by court employees with regard to computer records, the arrest was made on an arrest warrant quashed seventeen days earber. The Court concluded that “[i]f court employees were responsible for the erroneous computer record, thé exclusion of evidence at trial would not sufficiently deter future errors so as to warrant such a severe sanction.” Evans, 514 U.S. at 14. The Court, however, specifically refused to address whether the good-faith exception should apply when the mistake is made by law enforcement officials. Evans, 514 U.S. at 16 n.5. The prosecution carries the burden of estabbshing the applicability of the good-faith exception. United States v. Leon, 468 U.S. 897, 924 (1984); McGhee v. State, 25 Ark. App. 132, 136, 752 S.W.2d 303, 305 (1988); 1 Wayne R. LaFave, Search and SEIZURE § 1.3(f), at 71 n.65 (1996). However, even if we assume that Midgett did everything he could to determine the validity of the warrant, the State did not present any evidence explaining why the invahd warrant remained outstanding in the Greene County law enforcement records for nearly three months. Because we lack that information, it is impossible for this court to know whether the invalid warrant remained outstanding because of court error, which, according to Evans, permits application of the good-faith exception, or police misconduct, which precludes application of the good-faith exception because of the lack of objectively reasonable rebanee on the invabd arrest warrant. 1 WAYNE R. LaFave, SEARCH AND SEIZURE § 1.3(f), at 71 (1996)(“[B]ecause Leon rests upon the notion that the exclusionary rule is not impheated where there is no police misconduct to deter, that case does ‘not allow law enforcement authorities to rely on an error of their own making,’ as when they are at fault in faihng to update their own records to show that a vakdly-issued [search] warrant is no longer in effect.”); 2 WAYNE R. LaFave, Search and Seizure § 3.5(d), at 276 (1996)(“The Evans rationale would seem inappbcable whenever the mistake was instead attributable to the law enforcement agency.”); 2 WAYNE R. LaFave, Search and Seizure § 3.5(d), at 276 n.100 (1996)(“Then suppression of evidence obtained incident to that illegal arrest is called for ‘to deter [the pobce department] from debberately or negligently failing to keep its paperwork or computer entries up to date.’ ”). Thus, we conclude that the State failed to estabbsh that there was objectively reasonable rebanee on the invabd arrest warrant, and we must reverse and remand. As an alternative basis for affirmance, the State argues that even though Midgett did not arrest appellant on a traffic violation and the sole basis for the arrest was the invabd arrest warrant, because there was probable cause to arrest the appellant for violating traffic laws in the presence of the arresting officer, there was an independent basis for appebant’s arrest. Citing Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the State therefore concludes that the arrest was vahd and the subsequent search was justified as a search incident to an arrest. Specifically, the State argues that appebant violated Ark. Code Ann. § 27-51-301 (a) (Supp. 1999), which provides that “[u]pon ab roadways of sufficient width, a vehicle shab be driven upon the right half of the roadway. ...” and Ark. Code Ann. § 27-51-302(1) (Repl. 1994), which provides that “[w]henever any roadway has been divided into two (2) or more clearly marked lanes for traffic, ... [a] vehicle shab be driven as nearly as practical entirely within a single lane and shab not be moved from the lane until the driver has first ascertained that movement can be made with safety. ...” We conclude, however, that the evidence presented at the suppression hearing was inadequate to determine whether there was probable cause to befieve that appebant violated the two statutes. Specificaby, there is no evidence that appebant did not first ascertain that movement could be made with safety. Lacking this evidence, we cannot say that the arrest and subsequent search may be justified under this analysis. Reversed and remanded. ROAF, J., agrees. GRIFFEN and Vaught, JJ., concur separately. Stroud, C.J., and Crabtree, J., dissent.