The opinion
John E. Jennings, Chief Judge, dissenting. I would grant the State’s petition for rehearing. Certainly the matter is not clear cut, but I am persuaded that the panel’s view was wrong.
Billy Ray Johnson, the appellant, was charged with the possession of methamphetamine with intent to deliver. After the trial court denied his motion to suppress evidence, Johnson entered a conditional plea of guilty and was sentenced to twenty years imprisonment with ten suspended. The appeal from the conditional plea of guilty is pursuant to Ark. R. Crim. P. 24.3(b).
At the hearing on the motion to suppress and on appeal, the issue is whether the stop of a certain van, in which appellant was a passenger, violated the United States Constitution’s prohibition against unreasonable searches and seizures. The trial court held that it did not and on appeal, in an unpublished opinion, we reversed.
The pertinent facts were fairly set out in the division’s opinion. On October 6, 1992, the Fort Smith Police Department received an anonymous phone call stating that Billy Ray Johnson and Angela Highsmith were in room 56 at the Stonewall Jackson Inn dealing methamphetamine and that a blue van was being used in the drug sales. Fort Smith police officers, including Terry Grizzle, set up surveillance in a parking lot across the street from the motel. They watched as Ms. Highsmith came out of the motel and entered the van on the driver’s side. A few minutes later they saw Mr. Johnson also get into the van.
Officer Grizzle knew both Johnson and Highsmith. He was also aware of Johnson’s previous felony drug convictions and had been involved with arresting him on several occasions in the past.
When the van left the Stonewall Jackson Inn, Grizzle called for a marked unit to stop it. Officer Grizzle approached Mr. Johnson and asked him if he was in possession of drugs. Johnson replied that he was not and then consented to a search of the van where methamphetamine was subsequently found.
On this evidence, the panel felt that Lambert v. State, 34 Ark. App. 227 , 808 S.W.2d 788 (1991), governed and that Alabama v. White, 496 U.S. 325 (1990), was distinguishable. I cannot agree. This case, like Lambert and Alabama v. White, involves an anonymous tip. The question is whether that tip, taken together with other information, would constitutionally permit an investigative stop of a vehicle. Probable cause is required to make an arrest, but an investigative stop may be made upon “reasonable suspicion.” Ark. R. Crim. P. 3.1; Alabama v. White, supra; Willett v. State, 298 Ark. 588 , 769 S.W.2d 744 (1989); Lambert v. State, supra. In evaluating the information possessed by the police, courts are to consider the “totality of the circumstances.” See Alabama v. White, supra. The test is, based on the totality of the circumstances, whether these officers had a reasonable suspicion that the defendant was engaged in criminal activity. See White, supra.
We summarized the facts in Alabama v. White in our opinion in Lambert:
In White the police officer received a telephone call from an anonymous person, stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case. The officers went to Lynwood Terrace Apartments and saw a brown Plymouth station wagon with a broken right taillight in the parking lot in front of the 235 building. The officers saw the defendant leave the 235 building and get into the station wagon. They then followed the defendant as she drove “the most direct route to Dobey’s Motel.” Just before the defendant reached the motel, she was stopped by the officers who, after obtaining her consent to search, found cocaine in the car.
The United States Supreme Court said in White, “Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent’s car.”
Again, in Lambert, we said:
If Alabama v. White was a “close case,” we cannot hold that the facts corroborating the tip in the case at bar are sufficient in quality or quantity, under the totality of the circumstances test, to give rise to reasonable suspicion. The only information that the trooper had at the time of the stop which matched with the anonymous telephone call was that he saw a Woodline Motor Freight truck on the highway between Hot Springs and Little Rock at about the time the caller said the truck should be there. In contrast to White, there was no confirmation of the departure point and the officers did not follow the truck to see whether it was, indeed, going to Little Rock as the caller predicted. The description of the vehicle here was also less precise.
In my view the facts in the case at bar more clearly permit a finding of reasonable suspicion than those in Alabama v. White. Here, the officers verified by surveillance that Johnson and High-smith were at the Stonewall Jackson Inn, leaving in the blue van described in the tip. Unlike the situation in either White or Lambert, they could verify the identity of the suspects referred to in the tip because the officers knew them. Furthermore, Officer Grizzell had knowledge of appellant Johnson’s prior drug convictions and had arrested him in the past.
In the case at bar, the trial judge’s finding that the officers had a reasonable suspicion that Johnson was engaged in criminal activity was not clearly erroneous.
Cooper and Mayfield, JJ., join in this dissent.