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A brand new cellular telephone, new atlases, fast food, and energy drinks OH MY

Discussion in 'Legal' started by Vernal45, Jun 30, 2005.

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  1. Vernal45

    Vernal45 member

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    v.

    STATE OF ARKANSAS

    APPELLEE

    CACR04-888

    JUNE 29, 2005

    APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

    [NO. CR-04-73]

    HONORABLE MICHAEL MEDLOCK, CIRCUIT JUDGE

    REVERSED AND REMANDED

    Karen R. Baker, Judge

    Appellant, Manuel Meraz-Lopez, appeals a jury verdict convicting him of possession of marijuana with intent to deliver and possession of drug paraphernalia and sentencing him to a total of 240 months' imprisonment. His sole challenge to this conviction is that the trial court erred by denying his motion to suppress evidence seized from the trunk of his car at the scene of a traffic stop. We agree.

    At 10:04 p.m. on January 30, 2004, Arkansas State Trooper Jason Aaron activated hislights to pull over a 2004 Crown Victoria that was following the vehicle in front of it too closely. The trooper testified that the car took longer than most cars to pull over in response to his lights. When the car stopped, Aaron approached the passenger side of the vehicle and explained to the appellant, who was the driver, that he had been following the car in front of him too closely. Appellant explained that the car in front of him slowed down as it crossed the state line, causing him to follow it too closely. While speaking to appellant, Aaron noticed that appellant had a brand new cellular telephone, new atlases, fast food wrappers, and energy drinks scattered in the front. Aaron

    considered the presence of these items as indicators of possible criminal activity.

    Aaron explained that "we've encountered [possession of new cell phones] in almost every single one of our drug arrests" because drug couriers were provided telephones so that the drug suppliers could track the couriers. While the new phone was not suspicious on its own, the appellant's hands were shaking when he handed the trooper his paperwork, consisting of the car's rental agreement and his driver's license. In addition, the rental agreement indicated that the car had been rented on January 28 in Palmdale, California, and was due back there on February 4, while appellant's driver's license indicated that he lived in Phoenix, Arizona. Appellant's reasonfor the discrepancy was that he was driving to Little Rock to visit family for two days before returning to Palmdale and moving to California. The trooper viewed this information as suspicious in that appellant was driving more than 3,400 miles for a two-day visit, and that in his experience, drug couriers take such atypical trips.

    After checking appellant's paperwork, the trooper asked appellant to come to the back of the car so he could issue him a warning. The trooper described appellant at this point as "extremely nervous" as though he were "going to pass out." The trooper viewed appellant's nervousness as excessive when compared with the nervousness he normally encounters during traffic stops. In response to the trooper's question inquiring whether appellant felt well, however, appellant explained that he was shaking and starting to feel sick due to going suddenly from the warm car to the cold, night air.

    Trooper Aaron issued appellant a warning at approximately 10:10 p.m., six minutes after the stop, and then asked whether he could search appellant's car. As this was occurring, Olen Craig, also of the Arkansas State Police, arrived at the scene. Although Aaron and appellant had been conversing in English during the entire stop, when the trooper asked for consent to search, appellant seemed suddenly to not understand English. Other testimony indicated that TrooperCraig and an officer who later interviewed appellant, Special Agent Doug McAllister, agreed with Trooper Aaron's assessment that appellant appeared to be fluent in English. Trooper Aaron nevertheless retrieved a consent form in Spanish, and appellant began to review it. The trooper asked appellant whether he felt okay, and appellant responded that he felt like he was going to be sick, going from hot to cold without a jacket. The trooper explained that because he was concerned that appellant was going to fall, he asked appellant whether he wanted to sit in his patrol car, and appellant said, "yes."

    Although appellant eventually signed the consent form, it is unclear whether he did so before Trooper Eric Schrock arrived at the scene with his drug dog and ran it around the car from 10:24 to 10:26 p.m.1 The dog alerted on the trunk of the car, resulting in the discovery of three boxes containing approximately ninety-five pounds of marijuana.

    Appellant does not challenge Trooper Aaron's initial stop of the car, but argues that thetrial court erred in failing to suppress the evidence seized from the traffic stop because a reasonable suspicion did not exist to continue to detain the appellant after the warning ticket was issued. In his argument, appellant alleges constitutional violations as well as violation of Rule 3.1 of the Arkansas Rules of Criminal Procedure. The State argues that the constitutional argument is not preserved for appellate review because appellant relied exclusively upon Rule 3.1 at the suppression hearing. However, we need not decide the waiver issue in that appellant's reliance upon Rule 3.1 is well taken, and we reverse on that basis.

    When we review the denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. Simmons v. State, 83 Ark. App. 87, 118 S.W.3d 136 (2003). In order for a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation that the officer believed to have occurred. Id. at 512, 157 S.W.3d at 533. As part of a valid traffic stop, a police officer may detain the partywhile the officer completes certain routine tasks-such as computerized checks of the vehicle's registration, the driver's license, and the driver's criminal history-and writes the driver a citation or warning. Id. at 514, 157 S.W.3d at 535. During this process, the officer may ask the party routine questions such as the party's destination, the purpose of the trip, and whether the officer may search the vehicle; the officer may act on whatever information is volunteered. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001).

    Under Ark. R. Crim. P. 3.1, a detention without arrest may transpire under certain circumstances:

    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. 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.

    Pursuant to Ark. R. Crim. P. 2.1, "reasonable suspicion" is defined as "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 ... a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion." Our supreme court has held that the determination of whether an officer has reasonable suspicion depends on whether, under the totality of the circumstances, the officer has specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity. Laime, 347 Ark. at 155, 60 S.W.3d at 473. In the absence of reasonable suspicion, it is unlawful for law enforcement to detain a party once the legitimate purpose of the traffic stop is concluded. Sims, 356 Ark. at 515, 157 S.W.3d at 536.

    This case is similar to Sims, supra. In Sims, 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. Oursupreme court held that reasonable suspicion to detain did not exist, primarily because nervousness alone does not give rise to reasonable suspicion. Id.

    The recent case of Lilley v. State, ___ Ark. ___, ___ S.W.3d ___ (May 26, 2005) is also instructive.2 In Lilley, our supreme court focused on when the traffic stop was over and held that reasonable suspicion did not exist based on the fact that Lilley was nervous, he was drinking energy drinks, 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. As our supreme court explained, taken as a whole, these facts are seemingly innocent. But cf. Burks v. State, ___ Ark. ___, ___ S.W.3d ___ (June 9, 2005) (distinguishing Lilley and finding that the facts at the time the traffic stop was over suggested that the rental car had been stolen).

    Likewise, under the totality of the circumstances in this case, we hold that the facts do not establish "specific, particularized, and articulable reasons" that criminal activity was afoot. The presence of a brand new cellular telephone, new atlases, fast food, and energy drinks scattered in thefront are seemingly innocent. Even if appellant's shaking was due to nervousness, rather than the cold air of the January night, nervousness alone is not a sufficient basis to detain an individual. See Laime, supra. Consequently, the trial court erred in failing to suppress the evidence obtained as a result of the search of the car.

    While a consent to search was eventually signed, the uncertainty of when it was signed cannot remedy the unwarranted detention which resulted in the officer's securing the consent.

    Accordingly, we reverse and remand.

    Crabtree, J., agrees.

    Pittman, C.J., concurs.

    1 The State has a heavy burden to prove by clear and positive testimony that consent was freely and voluntarily given. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002); Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). The testimony in this case fell short of the burden to prove that the consent was given prior to the search.

    2 We attempted to certify this case to the supreme court; however, the supreme court declined to accept certification upon handing down its decision in Lilley v. State.

    http://courts.state.ar.us/opinions/2005a/20050629/ar04-888.html
     
  2. Vernal45

    Vernal45 member

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    Crawford County drug conviction overturned
    Thursday, Jun 30, 2005

    By Aaron Sadler
    Arkansas News Bureau
    LITTLE ROCK - State police did not have a compelling enough reason to search an Arizona man's rental car during a Crawford County traffic stop, the Arkansas Court of Appeals ruled Wednesday.

    The court reversed the conviction of Jose Manuel Meraz-Lopez, who was sentenced last year to 20 years in prison on drug charges.

    The court said Crawford County Circuit Judge Mike Medlock erred by failing to suppress evidence from the search, specifically 95 pounds of marijuana discovered in the car's trunk. The case was sent back to the circuit court.

    Judge Karen R. Baker, writing for the three-judge panel, said Meraz-Lopez's nervousness at the time of the traffic stop did not in itself provide police a reasonable suspicion of criminal activity.

    The court said the man should not have been detained after the initial purpose of the traffic stop ended.

    State Trooper Jason Aaron stopped the man's vehicle for following too closely on Jan. 30, 2004, on Interstate 40 near the Oklahoma state line.

    When Meraz-Lopez was asked to exit the car, Aaron described him as "extremely nervous," near the point of fainting. He said the man told him he was feeling sick from leaving a warm car into the cold January air.

    Aaron issued Meraz-Lopez a warning ticket, then asked to search his car. He was provided a consent form in Spanish, even though police said he seemed to speak fluent English, the court said in its summary of the case.

    At that point, Meraz-Lopez said he felt ill and agreed when Aaron asked if he wanted to sit in the trooper's patrol car.

    Another trooper came to the scene with a drug-detecting dog a few minutes later. The court said it was unclear whether Meraz-Lopez signed the consent form before the drug dog was used.

    Regardless, the timing of when the consent form was signed did not remedy Meraz-Lopez's improper detention, according to the opinion.

    Aaron testified at trial he considered the presence of a new cellular telephone, new atlases, energy drinks and a one-way rental-car agreement as indicators of possible criminal activity.

    However, the appellate court said those items are "seemingly innocent."



    Copyright © Arkansas News Bureau, 2003 - 2005

    http://www.arkansasnews.com/archive/2005/06/30/News/323739.html
     
  3. BostonGeorge

    BostonGeorge Member

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    I can see where the trooper got his suspicion from. After all, energy drinks contain caffiene, which is also the active ingrediant in coffee. As we all know coffee = PC, therefore it should be inferred that energy drinks do as well.
     
  4. fjolnirsson

    fjolnirsson Member

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    Well, holy crap! I'm glad I didn't get pulled over on the way to Oregon! I had this sort of "evidence" all over the front seat of my truck!
    You couldn't write better comedy than what passes for PC nowadays. :barf:
     
  5. Keaner

    Keaner Member

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    See what a false sense of security can do! Just cause you dont have a coffee can in your car...
     
  6. Vernal45

    Vernal45 member

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    LMAO, good 1 :evil:
     
  7. Justin

    Justin Moderator Staff Member

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    THE CHAIR IS AGAINST THE WALL
  8. Spreadfire Arms

    Spreadfire Arms Member

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    those items were forming his suspicion, not legal probable cause to do anything. personally i think it was good police work. the guy did, after all, have a trunk load of marijuana. :banghead:
     
  9. Vernal45

    Vernal45 member

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    Those items can be found in about 95% of all vehicles. Does that mean when stopped you are under suspicion of a crime?
     
  10. 308win

    308win Member

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    Next time the LOE should simply take the dope and let the runner explain to the owner why it didn't get to its destination. My guess is that his explanation would be met with a lot of skepticism.
     
  11. odysseus

    odysseus Member

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    It's a funny one actually.

    I mean I agree the cell phone alone seems a little bit of a stretch (I just got a new one myself! :uhoh: ) - BUT the guy did have 95 pounds of the reefer-madness in his trunk! :D - so the officer was correct... but the DA or judge screwed it up it looks..

    I think it is hilarious.
     
  12. fjolnirsson

    fjolnirsson Member

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    You're right, my mistake. In addition to my move to Oregon, I also had
    in the front seat of my truck every day while I attended the police academy, since it was a 2 hour drive from my home. Sorry, it just doesn't add up for me. Any idea how popular energy drinks and fast food are among today's youth? Hel, anyone in the Bay Area might typically have all of these items in their front seat. This, IMO, is on the same level as searching a vehicle because of coffee cans in the back seat. I'm serious. It's really ludicrous.
    Now, honestly, it could be that something about the guy just didn't look right, or he "felt" wrong. One of the things I was taught in the academy was that if something feels wrong about a stop, you manufacture reasons to dig. Such as coffee cans being used by criminals in an attempt to confuse drug sniffing dogs. Manufacture of a reason to search is what I have a problem with. And it's common police practice. Does it get "criminals" off the street? Sure. But it also violates the civil rights of the average citizen. Police officers are being encouraged to play a very dangerous game these days. The result is a growing distrust and dislike of the police.
     
  13. fjolnirsson

    fjolnirsson Member

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    As a matter of fact, I just checked in my truck. Guess what I found in the cab?

    Actually, the cell phone is about 6 months old now. But it looks new. Guess I better not get pulled over. At this point, I may as well be driving around with dryer sheets and coffee cans. I'm such a rebel!
    Gods preserve us from overzealous public servants. :uhoh:
     
  14. GunGoBoom

    GunGoBoom member

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    Can someone point me to the *original* coffee can thread?
     
  15. Vernal45

    Vernal45 member

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    Well, thats one way to put it.
     
  16. Zundfolge

    Zundfolge Member

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    And a broken clock is right twice a day.

    If we just did away with the 5th amendment they would catch a LOT more criminals.

    If it saves just one child from smoking that demon weed it doesn't matter what the police do to the innocent.


    :rolleyes:


    /me goes to get another cup of coffee
     
  17. Vernal45

    Vernal45 member

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  18. Standing Wolf

    Standing Wolf Member in memoriam

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    More Great Victories in the war against selected drugs!
     
  19. HonorsDaddy

    HonorsDaddy Member

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    Well they did do away with part of it last week...
     
  20. waterhouse

    waterhouse Member

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    In my car you might find some fast food wrappers and some energy drink cans, and my cell phone is relatively new (4 months old)

    Thanks god I have one of those handy GPS Nav. systems so I don't have very many maps. It seemed like a pricey upgrade at the time of purchase, but now that I know I don't look like a criminal it was all worth it.
     
  21. bogie

    bogie Member

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    Heh, heh...

    I clean my car out when it _needs_ it.

    Right now, in the passenger side floorboard:

    About 25-30 diet coke empties.

    Numerous fast food wrappers.

    A few maps.

    A coupla bags of stuff under the stuff that I have no idea right now what they contain...

    The seat holds TWO cell phone chargers, and occasionally both cell phones.

    Cuff me.
     
  22. Don Gwinn

    Don Gwinn Moderator Emeritus

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    I can remember at least once in my younger days being asked if I'd let an officer search my truck. I told him he was welcome to search it, but I could never find anything in there so I doubted he would, either. At that time the floor of that truck was literally a foot deep in food wrappers, cans, auto part boxes, etc. etc.

    To his credit, he dug in with a will. Today I'd tell him no, but back then I figured if I had nothing to hide, why would I refuse a search?
     
  23. GT

    GT Member

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    I guess I am one of the very few who thinks this was good police work?

    Seems that the cops were right, but just a few minutes late in getting the sniffing dog there (seems they get 15 minutes to do their thing).

    The court correctly reversed the decision and justice was served.

    The guy was guilty and he walked.

    The drug legalizers should be happy, their guy won.


    G
     
  24. Vernal45

    Vernal45 member

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    :what:

    SO, its ok, for a LEO to jack with you, want to search, call a dog out all because you have a new cell phone, an atlas, an energy drink and food wrappers in your car? Each one of us has 1 or all of these items in our vehicles. Does that mean we are all under suspicion? That is the point of this.

    Yes the guy was guilty, yes the cop screwed the pooch by not asking for consent/dog earlier.

    My point is, again, the items in the vehicle that lead him to believe this man was guilty, does not matter that in the end he was, these objects are common, every day purchases for everyone, like coffee.
     
  25. BrokenPaw

    BrokenPaw Member

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    When I lived in Summerville, SC, I worked down by the Naval Weapons Station near there. One day I went out to get McLunch for myself and a co-worker. On the way back to work, I got pulled over by a Charleston cop. As soon as she looked in the vehicle, she asked me to get out, frisked me (which was a Good Thing, cos she was cute :D ), and told me to stand over on the shoulder with her partner.

    She asked me for consent to search my vehicle, and I told her that I did not give consent. She told me that I had an open food bag (Remember -- McLunch) in the car, which was an indication that I "lived in the car." Mkay, so that's probable cause, how? Anyway, I told her that it was probable cause that I'd just gone to get lunch, and again refused consent. Then she told me that the map I had on the floor of the passenger seat was an indicator that I did not know where I was. I politely informed her that if I were using that map to help me, I'd be a lot more lost than she thought, since it was a New Jersey state map (I'd been visiting my folks the previous week, and they'd just moved to south Jersey). She looked stumped for a minute, and then said that I had been driving slowly, which was another indicator that I was unfamiliar with the area. I asked her how fast I'd been going. She said, "25." I pointed to the "Speed limit - 25" sign just down the road. (Golly, officer, why is it you think I might not be speeding with a fricking police cruiser right behind me?)

    She informed me that the three indicators (the McFood, the map, and the driving-the-speed-limit) were enough to give her probable cause, so she was going to search my car without my consent.

    Not a whole lot I could do at the time. She searched, she found nothing. She wrote me a ticket for having a bad tail-light. She let me go.

    The really actually scary part about the whole thing is that later that evening I realized that I had left three 10" throwing knives in the back of the car (they'd gotten covered up by some paper). And she missed them. While searching my car, after I'd denied consent. You'd think after going through all of that trouble, she'd have been a wee bit more thorough. :confused:

    ::shrug:: There's nothing that's going to stop a cop from searching your car if dryer sheets, coffee cans, McLunch, and maps constitute probable cause.

    Granted, my car at the time was a grungy-looking Camaro IROC, and I do not look like the guy you want your daughter dating. Now, I drive a much more respectable-looking car, and I still look like the guy you don't want your daughter dating. But I don't get the hairy eyeball from police any more. I don't know why.

    -BP
     
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