# Powell v. State > Court of Appeals of Arkansas · May 15, 2013 · 2013 Ark. App. 322 URL: https://www.frixlaw.com/law-library/cases/5115528 ## Case - **Full name:** Walter POWELL, III v. STATE of Arkansas - **Court:** Court of Appeals of Arkansas - **Decided:** May 15, 2013 - **Citations:** 2013 Ark. App. 322; 427 S.W.3d 782; 2013 Ark. App. LEXIS 335; 2013 WL 2099817 - **Precedential status:** Published - **Opinion:** Dissent by Brown - **Judges:** Agree, Brown, Glover, Gruber, Harrison, Walmsley, Whiteaker - **Cited by:** 4 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/5115528 ## Opinion text WAYMOND M. BROWN, Judge, dissenting. |9I respectfully disagree with the majority’s conclusion that the stop had not yet been completed and that the length of the stop was reasonable. For the following reasons, I dissent. On March 7, 2011, while driving his vehicle, appellant was pulled over by an officer of the Rogers Police Department. The officer identified himself and requested appellant’s license and registration which appellant provided. A search of his driver’s license revealed no warrants, but showed a prior unspecified narcotics arrest. The officer returned to the car and requested that appellant exit his vehicle, which he did. The officer asked appellant if he possessed anything illegal. Appellant answered no. The officer also asked if he could search his vehicle. Appellant stated that he did not think the officer needed to search the ear. The officer’s questioning continued with him asking appellant over and over, using different wording, whether he possessed anything illegal when appellant had already answered in the negative. Officers are allowed to conduct routine checks during traffic stops. Our supreme court has stated that after these routine checks are completed, unless the officer has a reasonably articulable suspicion for believing that criminal activity is afoot, continued detention of the driver can become unreasonable. 1 Once the purpose of the traffic stop is completed, the | ^officer may not further detain the vehicle or its occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention. 2 Officer Warren had completed his routine checks, with nothing occurring either in sight or action, that would give rise to a reasonable suspicion. After learning that appellant had no warrants, via the background check, the purpose of the stop was over. Any knowledge of appellant’s prior narcotics arrest, which was ascertained by the background check, is irrelevant since the officer had no reasonable suspicion prior to learning of it. Officer Warren should have issued appellant a ticket and released him. At best, though I argue differently, the stop was over after appellant subsequently answered the officer’s initial inquiry into appellant’s prior arrests and whether appellant had any drugs. I would conclude that because Officer Warren’s stop had concluded, despite his failure to return appellant’s documents, he was required to have a reasonable suspicion to detain appellant. Because he lacked a reasonable suspicion to continue the stop, pursuant to Rule 3.1 of our Arkansas Rules of Criminal Procedure, I would reverse. 3 1 uIn the absence of a reasonable, articu-lable suspicion of some drug-related criminal activity, once the purpose of the traffic stop is completed, the operator of the vehicle should be allowed to proceed on his way, without being subject to further delay by police for additional questioning. 4 After the officer returned to the vehicle, appellant should have been issued a ticket and released. Even if the officer was permitted to asked further questions upon his return, once appellant answered those questions, the purpose for the traffic stop had ended. Officer Warren opted instead to continue the stop, rephrasing the same question and asking it over and over despite the fact that appellant had already given his answer. Officer Warren showed no further interest in, and indeed no longer addressed, the initial purpose of the traffic stop. While the majority states that our case law suggests that a stop is not complete until the warning citation and other documents are delivered back to the driver, our ease law does not suggest that an officer is allowed to withhold such documents in order to continue a stop when its purpose, for all intents and purposes, has been completed. Because the officer continued the stop when he had yet to develop a reasonable suspicion, all the while holding on to appellant’s documentation, thereby preventing him from leaving, the traffic stop became a prolonged detention requiring reasonable suspicion. Officer Warren’s testimony was that he saw an empty Swisher cigar wrapper lying on the vehicle’s passenger side floorboard, that appellant appeared “shaken and nervous,” and that his background check showed a prior drug arrest. In determining whether an officer had [^reasonable suspicion, courts must recognize that, “when used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion.” 5 Officer Warren testified that his training taught him that Swisher cigars are commonly used to make blunts for smoking marijuana, but he did not smell nor see the remains of any marijuana or blunts and did not believe appellant was under the influence of any controlled substance. Officer Warren’s deduction that appellant possessed marijuana, solely because he had a Swisher wrapper, is unsupported and does not give rise to a reasonable suspicion. As to appellant’s nervous appearance, we have stated that “[m]ere nervousness, however, cannot constitute reasonable grounds for detention.” 6 Initial signs of nervousness are commonplace when one is confronted by a law enforcement officer. 7 Nervousness, in addition to a Swisher cigar wrapper, is not sufficient to constitute reasonable suspicion of possession of marijuana. Finally, Officer Warren testified that dispatch informed him of appellant’s prior narcotics arrest. He was informed only of an arrest, not the specific infraction nor the narcotic involved. Officer Warren had no reasonable suspicion that appellant was in possession of any | ^controlled substance prior to learning of appellant’s prior drug arrest. Learning of appellant’s prior drug arrest did not change that fact. A cigar wrapper, nervousness, and a prior drug arrest are not enough to evoke a reasonable suspicion. Such evidence shows nothing more than a man made nervous in the presence of a police officer by his knowledge of his own prior drug arrest. There is nothing about this evidence, taken individually, collectively, or in totality, that can specifically, particularly or articulately show that appellant possessed marijuana, or any other controlled substance, on his person, or in his vehicle. I do not include the fact that appellant possessed scales and cocaine in my analysis because my position is that the officer learned of and obtained these things after the traffic stop had ended. Only what the officer knew at the time of the detention enters the analysis of whether the officer had reasonable suspicion to conduct an investigative detention; after-acquired knowledge is irrelevant. 8 Appellant’s admission to possession of K2 and the subsequent recovery of the scales and cocaine should have been suppressed. A major crux of the majority’s argument rests on the fact that the entire stop was less that 15 minutes. Rule 3.1 permits a law enforcement officer lawfully present in any place, in the performance of his duties, to 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 properly, | uif such action is reasonably necessa'ry either to obtain or verify the identification of the person or to determine the lawfulness of his conduct, 9 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. 10 At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense. 11 The officer must develop reasonable suspicion to detain before the legitimate purpose of the traffic stop has ended. 12 In Menne v. State, our supreme court noted that the fifteen-minute time constraint imposed by Rule 3.1 would not have begun until after the officer therein completed his routine tasks associated with the traffic stop. 13 Rule 3.1 permits an officer to detain a person for an extended period of time, beyond that necessary to complete the purpose of the initial stop, as reasonably necessary under the circumstances. The 15-minute rule, or time period which is reasonably necessary to complete the stop in the alternative, does not apply to the initial stop and is not triggered until the purpose for the initial stop is complete. After completion of the initial purpose for the stop, Rule 3.1 permits the officer to continue the stop only if he has already acquired a reasonable suspicion of criminal activity. The rule does [15not permit an officer to further detain a person in order to gain a reasonable suspicion. Because it is my argument that the stop ended after appellant’s background check showed no warrants, the length of the stop is irrelevant, for there was no reasonable suspicion on the officer’s part that would permit him to institute a Rule 3.1 prolonged detention. Furthermore, the fact that the officer no longer directed any of his inquiries to the initial purpose of the stop shows that the initial purpose of the stop was over, and the officer, who lacked reasonable suspicion, was on a fishing expedition to find some. He withheld appellant’s documentation in order to facilitate his search for the reasonable suspicion that he did not have. The same would be true even if the stop ended when appellant answered the officer’s questions after exiting the car. Once the appellant answered, the officer had no further purpose associated with the initial purpose for the stop to detain him any longer. Because the initial purpose for the stop was complete, either upon the officer’s return to the vehicle post-background check or after appellant answered the officer’s initial questions upon exiting the car, well before any admissions by appellant or discoveries made by the officer’s search of the car, the stop was complete. Therefore, to further detain appellant required a reasonable suspicion. Officer Warren had no reasonable suspicion. Before we can determine that a valid Rule 3.1 stop occurred, or conduct any analysis of the amount of time required to complete the stop, we must first determine that reasonable suspicion existed, and in this situation, it simply did not. HARRISON, J., joins. . Johnson v. State, 2012 Ark. App. 167, 5 , 392 S.W.3d 897, 900 (citing Arkansas Rule of Criminal Procedure Rule 3.1)(emphasis added). . Yarbrough v. State, 370 Ark. 31, 38-39 , 257 S.W.3d 50, 56-57 (2007) (citing Sims v. State, 356 Ark. 507 , 157 S.W.3d 530 (2004) (citing United States v. Mesa, 62 F.3d 159 (6th Cir. 1995))). . Since we must address sufficiency issues first for double jeopardy purposes, I concur with the majority that the evidence before the court was sufficient to support the conviction. However, due to my belief that the purpose of the stop had been completed prior to any admissions or subsequently discovered evidence, I believe that a reasonable suspicion was required to continue the stop and that Officer Warren lacked this. Because appellant's admission and the evidence found from a search of appellant's vehicle resulted due to the officer’s improper extension of the stop, they should have been suppressed. I also concur with the majority that the stop was valid, therefore I do not address the validity of the stop. .Davis v. State, 99 Ark.App. 173, 175 , 258 S.W.3d 401, 404 (2007) (citing Sims v. State, 356 Ark. 507 , 157 S.W.3d 530 (2004); United States v. Wood, 106 F.3d 942 (10th Cir. 1997)). . James v. State, 2012 Ark. App. 118, at 9 , 390 S.W.3d 95, 100 (citing United States v. Cortez, 449 U.S. 411, 419 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981)). . Enriquez v. State, 97 Ark.App. 62, 66 , 244 S.W.3d 696, 699 (2006) (citing Sims v. State, 356 Ark. 507 , 157 S.W.3d 530 (2004)). . Laime v. State, 347 Ark. 142, 159 , 60 S.W.3d 464, 475 (2001) (citing United States v. Beck, 140 F.3d 1129 (8th Cir.1998)). . Omar v. State, 99 Ark.App. 436, 438 , 262 S.W.3d 195, 198 (citing Laime v. State, 347 Ark. 142 , 60 S.W.3d 464 (2001)). . Johnson v. State, 2012 Ark. App. 167, at 4 , 392 S.W.3d 897, 900 (quoting Arkansas Rule of Criminal Procedure Rule 3.1)(emphasis added). . Id. . Id. . Id., at 6, 392 S.W.3d 897 (citing Malone v. State, 364 Ark. 256 , 217 S.W.3d 810 (2005)). . 2012 Ark. 37, at 7-8 , 386 S.W.3d 451, 455 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5115528. Public record. Not legal advice.