# State v. Allen > Supreme Court of Arkansas · February 7, 2013 · 425 S.W.3d 753 URL: https://www.frixlaw.com/law-library/cases/5115303 ## Case - **Full name:** STATE of Arkansas v. Robert M. ALLEN - **Court:** Supreme Court of Arkansas - **Decided:** February 7, 2013 - **Citations:** 425 S.W.3d 753; 2013 Ark. 35; 2013 Ark. LEXIS 54; 2013 WL 460433 - **Precedential status:** Published - **Opinion:** Dissent by Danielson - **Judges:** Danielson, Goodson, Hannah, Hart, Hoofman - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5115303 ## Opinion text PAUL E. DANIELSON, Justice, dissenting. There are several problems with the majority’s opinion that lead me to dissent. First, it affirms a finding of the circuit court that |7essentially, without specifically stating so, found the relevant statute unconstitutional without that argument being properly raised by either party or being fully developed. Secondly, even were the constitutionality issue properly before the court, the relevant statute is not unconstitutional. As noted in the majority, Arkansas Code Annotated section 27-101-105 provides: (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, except that it shall be the duty of the Department of Health separately to enforce the provisions of § 27-101-401 et seq. (B) Certified law enforcement officers of the Department of Parks and Tourism and municipal police officers may 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. (3) Upon investigation, they may direct the operator of any vessel in violation of this chapter to return to the dock where the voyage originated or to the nearest dock if appropriate. Ark.Code Ann. § 27 — 101—105(a)(l)(3) (Repl.2010) (emphasis added). Sergeant Tucker simply made a stop that Ark.Code Ann. § 27-101-105(a) gave him the authority to make. The circuit court found that the stop was not reasonable and the majority holds that “this practice of safety-check stops by law-enforcement officers violates the Fourth Amendment.” This can only mean that the statute authorizing the practice violates the Fourth Amendment. First, it was not argued below that the statute is unconstitutional. The defendant below argued that the stop was made without probable cause. The circuit court agreed with the State that the officer did not need probable cause pursuant to the statute to stop and board Allen’s boat. However, without the issue being raised by either party, the court found that | «the stop, authorized by the statute, violated Allen’s Fourth-Amendment rights. This court has repeatedly held that when the constitutionality of a statute is challenged, the Attorney General of this state must be notified and is entitled to be heard. Ark. Code Ann. § 16-111 — 106(b) (Repl.2006); see also Landers v. Jameson, 355 Ark. 163 , 132 S.W.3d 741 (2003). The purpose behind the notification to the Attorney General is to assure a “fully adversary and complete adjudication” of the constitutional issue. See Arkansas Dep’t of Human Servs. v. Heath, 307 Ark. 147, 149 , 817 S.W.2d 885, 886 (1991). While the Attorney General’s office has displaced the prosecutor as the party on appeal, it is limited to what was argued below. Because it was not a party to this case at the circuit level, and because the court made its finding sua sponte, the Attorney General’s office was not afforded the opportunity to develop an argument before the circuit court as to why the statute is in fact constitutional. For these reasons alone, the circuit court’s finding should not be upheld here. However, the majority opinion affirms the finding of the circuit court, and the “practice of safety-cheek stops” is held to violate the Fourth Amendment. Therefore, the statute authorizing that practice is struck down as unconstitutional. I cannot agree. The Fourth Amendment requires government to respect “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures.” Chandler v. Miller, 520 U.S. 305, 308 , 117 S.Ct. 1295 , 137 L.Ed.2d 513 (1997). This restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion. Id. However, searches conducted without grounds for suspicion of particular individuals have been upheld in certain limited circumstances including brief stops for questioning or observation at a fixed border-|patroI9 checkpoint, at a sobriety checkpoint, and administrative inspections in closely-regulated businesses. Id. The stop of Allen’s boat for a safety inspection falls within these limited circumstances and the statute properly authorizes such a suspicionless seizure. In Delaware v. Prouse, 440 U.S. 648 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979), the United States Supreme Court stated that, “the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” 440 U.S. at 654 , 99 S.Ct. 1391 . We have previously applied this test to a roadblock and held that the roadblock was reasonable and not violative of the Fourth Amendment. See Mullinax v. State, 327 Ark. 41 , 938 S.W.2d 801 (1997). There, Aye weighed three factors: (1) the State’s interest, (2) the degree to which the seizure advances its interest, and (3) the level of intrusion on an individual’s privacy. See id. After considering those factors, we held that the roadblock was reasonable and, furthermore, based on the testimony presented regarding the field officers’ discussion of the particular procedures and location for the roadblock with their superior officer, we held that there had been a “plan embodying explicit, neutral limitations on the conduct of individual officers.” Id. at 49 , 938 S.W.2d at 806 (quoting Brown v. Texas, 443 U.S. 47, 51 , 99 S.Ct. 2637 (1979)). While stops on the water involve inherently different circumstances than roadblocks, the same balancing test should lead us to conclude that Sergeant Tucker of the Arkansas Game and Fish Commission did not violate the Fourth Amendment by stopping Allen’s boat for no other reason than a safety inspection. Certainly, the State has a great interest in maintaining safe conditions for boaters on Arkansas’s waterways. Permitting officers to stop boats forljoFollowing safety checks directly advances the State’s interest. It would be impossible for an officer to know if a boater was carrying the proper safety equipment .without stopping his or her boat. Furthermore, the procedure is minimally. invasive, as the officer merely stops the boat to check for safety compliance — a certain number of life jackets and other required safety equipment. Finally, Sergeant Tucker testified that he was “working boating law enforcement” on the day of Allen’s arrest. He informed the court that while he had not pulled over every boat that day, he would typically stop a boat and do a safety check if he could do so safely and that he usually does try to check as many boats as he can. For these reasons, the safety check of Allen was in compliance with the statute and did not violate his Fourth-Amendment rights. I am astounded that this court would issue an opinion that diminishes the State’s ability to regulate our waterways and ensure the safety of the citizens who use them. Due to the precarious nature of waterways, it is impractical to look for the same type of “plan” as one might find for checkpoints on roadways. The protection of our citizens outweighs the slight intrusion on a boater when asked to stop for a safety inspection. While this is an issue of first impression in this state, other states with similar statutes have addressed this issue and upheld the statutes, failing to find any Fourth-Amendment violations. See State v. Casal, 410 So.2d 152 (Fla.1982); Peruzzi v. State, 275 Ga. 333 , 567 S.E.2d 15 (2002); People v. Roe, 48 Ill.2d 380 , 270 N.E.2d 27 (1971); State v. Giles, 669 A.2d 192 (Me.1996); State v. Colosimo, 669 N.W.2d 1 (Minn.2003); State v. Pike, 139 N.C.App. 96 , 532 S.E.2d 543 (2000); Schenekl v. State, 30 S.W.3d 412 (Tex.Crim.App.2000). The stop in the instant case and the statute permitting such a stop |nshould be upheld in our state as well, GOODSON and HOOFMAN, JJ., join. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5115303. Public record. Not legal advice.