Van Patten v. State

James R. Cooper, Judge, dissenting. I respectfully dissent from the majority opinion because, in my opinion, it fails to follow Arkansas law as set out in Baxter v. State, 274 Ark. 539 , 626 S.W.2d 935 (1982). In Baxter, the Arkansas Supreme Court affirmed our unpublished opinion issued September 9, 1981. In Baxter, a general report of an armed robbery was broadcast over police radios. An officer went to check out a city park, located approximately one-fourth mile from the scene of the robbery. He observed a vehicle in the park. He stopped the vehicle and later discovered evidence which led to the appellant’s conviction. In Baxter, the officer testified that he had no reason to stop the subject except to seek information, and that he asked for Baxter’s driver’s license in case other officers wished to contact him later as a witness.

The Supreme Court noted that cases “regarding the police authority to make investigatory stops based upon reasonable suspicion that a vehicle or a person is involved in criminal activity are inapplicable to the stop at issue here.” 274 Ark. at 542 [citations omitted]. The Court then said:

Involved here is the question of the extent, of permissible interruption a citizen must bear to accommodate a law enforcement officer who is investigating a crime. The practical necessities of law enforcement and the obvious fact that any person in society may approach any other person for purposes of requesting information make it clear the police have the authority to approach civilians.

274 Ark. at 543 . The Court went on to say:

There is nothing in the Constitution which prevents the police from addressing questions to any individual. See Terry v. Ohio, supra. However the approach of a citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individuals right to privacy and personal freedom. To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter. [citation omitted.]

Id. The Court then cited Rule 2.2 of the Ark. R. Crim. P., Ark. Stat. Ann. Tit. 43, App. (Repl. 1977), which basically provides that a police officer may request anyone to furnish information or to cooperate in the investigation of a crime, and may even require the person to go to a police station.

Turning to the case at bar, the police received a report of what was variously described as a “disturbance” or a “loud party disturbance”. A vehicle similar to that driven by the appellant was observed within a block or two of the scene after an additional report had been received that the person responsible for the disturbance had just left the scene. It is true that, at the time of the stop, the officer did not know the nature of the disturbance; he did not know whether it was simply a loud party, a family quarrel, a fight, or any other type crime. The majority opinion only cites Rule 3.1 of the Rules of Criminal Procedure, assuming that the appellant was suspected of being the person responsible for the “disturbance”, and then holds that, since there was no information in the officer’s possession that crimes against property or persons had occurred, Rule 3.1 would not allow the stop.

Part of the reason for the majority’s confusion is the fact that the Supreme Court, in Baxter, mentioned the seriousness of the crime. Yet the Court did not rely on Rule 3.1, obviously because there was absolutely no indication that Baxter had anything to do with the crime. The case was affirmable only under Rule 2.2, and I think we should reach the same result. At least in this case there was an articulable reason to believe that Van Patten, or whoever the operator of the Jeep turned out to be, did truly have knowledge of whatever criminal activity had occurred. In Baxter, the Supreme Court upheld the stop, search, and arrest, of a person who, at best, was a mere passer-by.

I would affirm.