Van Patten v. State

Melvin Mayfield, Judge, dissenting. I dissent from the majority’s decision and in order to put this case in proper perspective, I first quote the entire argument made for the State by the Attorney General.

Appellant appeals his conviction of driving while intoxicated arguing the trial court erred in finding the investigatory stop of appellant was supported by a reasonable suspicion. Appellant does not argue there was a lack of probable cause for his arrest for driving while intoxicated following the initial stop. Appellee submits the stop of appellant was valid under both the Fourth Amendment and Rule 3.1 of the Arkansas Rules of Criminal Procedure because it was based in specific, particular and articulable reasons indicating appellant had been involved in criminal activity. Terry v. Ohio, 392 U.S. 1 (1968); A.R.Cr.P. Rule 3.1; Hill v. State, 275 Ark. 71 , 628 S.W.2d 284 (1982).

The analysis of this issue under the Fourth Amendment and Rule 3.1 is overlapping in most part. Rule 3.1 is a codification of those interests protected under the Fourth Amendment as that Amendment was interpreted by the Supreme Court in Terry. Rule 3.1 deals only with the validity of the initial stop which was but one aspect of the stop and frisk issue in Terry. Since Rule 3.1 tracks the Fourth Amendment protections in part relevant to the facts in this case, the issue here can and should be resolved on the basis of Rule 3.1. Resolution of the issue thus depends initially on whether disorderly conduct is a misdemeanor involving danger of injury to persons or property and if so, secondly on whether the policeman had a reasonable suspicion when he stopped appellant.

Disorderly conduct, defined at Ark. Stat. Ann. § 41-2908 (Repl. 1977), can clearly be a misdemeanor involving the danger of injury to persons or property. § 41-2908(1) (a) defines disorderly conduct as purposely causing public inconvenience, annoyance or alarm by fighting or by violent, threatening behavior. This section of disorderly conduct is clearly concerned with preventing injury to persons. § 41-2908(l)(c) involves danger of injury to persons, as well and § 41 -2908 (1) (h) involves danger of injury to property. Furthermore, as precedents show, those persons convicted of disorderly conduct have often injured others. See, e.g. Bousquet v. State, 261 Ark. 263 , 548 S.W.2d 125 (1977); Farr v. State, 6 Ark. App. 14 , 636 S.W.2d 884 (1982).

Because of this danger of injury to either persons or property, disorderly conduct falls within that group of misdemeanors identified in Rule 3.1.

Since disorderly conduct is covered by Rule 3.1 the next issue is whether the policeman here had specific, particular and articulable reasons supporting his investigatory stop of appellant. Rule 2.1, defining reasonable suspicion, the commentary to Rule 2.1, and case law give a clear picture of what is required before an investigatory stop will be deemed valid. In essence there must be an objective manifestation (i.e., specific, particular and ar-ticulable reasons) that the person stopped is, has been, or is about to be engaged in criminal activity. Such is the case here. The policeman, while on patrol, was sent to investigate suspected disorderly conduct at a party in western Little Rock at 11:34 p.m. While on his way, he received a second radio broadcast that the suspect creating the disturbance had left in a brown jeep and was traveling east. The policeman met a brown jeep at an intersection east of the scene of the disturbance. The policeman stopped the jeep at that intersection. The intersection was in close proximity to the scene of the disturbance.

The specific and particular facts relied upon by the police officer were: 1) the radio broadcast informing him the suspect causing the disturbance had left in a brown jeep, 2) the nearness of a brown jeep and its relative location to the scene of the disturbance and 3) the time of night. Any one of these facts alone may not have been enough to support a reasonable suspicion; when combined, however, there is clearly a basis in fact for the stopping of appellant. The stop was valid because supported by reasonable suspicion. (Citations to transcript omitted.)

To the above I would point out that reasonable suspicion is defined by A.R.Cr.P. Rule 2.1 as follows:

“Reasonable suspicion” means 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; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

The Commentary to Rule 2.1 states in part: “The purpose of the rule is to allow brief detention in circumstances not affording reasonable cause to arrest but giving rise to a ‘reasonable suspicion’ that criminal conduct is afoot.” In Adams v. Williams, 407 U.S. 143, 145-46 (1972), the Supreme Court of the United States said:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at that time.

I would affirm on the basis argued by the Attorney General. I also think it would be proper to affirm for the reasons set out in the dissenting opinion of Judge Cooper.