Davis v. State

Jim Hannah, Justice, dissenting. I must respectfully dissent. I agree that there was reasonable suspicion to support the decision to stop and detain Davis. Detective White had seen two men engage in what appeared to be a drug transaction by a hand-to-hand transfer. Davis was one of those men. This occurred in an area known for drug activity and in the front yard of an abandoned and vacant house.

However, although I agree that the stop and detention was legal, the patdown search of Davis violated Arkansas Rule of Criminal Procedure 3.4. Judge Bird’s analysis in his concurrence to the court of appeals opinion is correct.

It is apparent from the trial testimony that Davis was searched because police believed he had drugs or other contraband on his person. This is prohibited under the United States Constitution, under the Arkansas Constitution, and by Ark. R. Crim. P. 3.4. Detective Ivy testified that he intended to stop and detain Davis and wait for White. Ivy testified he stopped Davis by saying: “Sir, I’m going to talk to you a minute, or something like that.” Ivy testified he then told Davis he had been stopped because White had seen a hand-to-hand transaction.

Ivy testified that Davis appeared fidgety and sweaty, that his carotid artery was throbbing, and that he concluded Davis was about to flee. Because of this fear, he asked Davis to sit down at a picnic table. Ivy further testified that he asked Davis, “Do you have any weapons or drugs on you?” According to Ivy, Davis answered no, and Ivy then asked, “Do you mind if I search you?” The record is devoid of any testimony or any evidence that Ivy even had a subjective belief Davis was armed or posed a threat to his safety. There is no objective evidence, such as Ivy noting a suspicious bulge in Davis’s pocket. There is no evidence Ivy-feared for his safety or had reason to fear for his safety before he commenced the search.

This court stated in Potter v. State, 342 Ark. 621 , 30 S.W.3d 701 (2000), that under Ark. R. Crim. P. 3.4, and under Terry v. Ohio, 392 U.S.1 (1968), “the purpose of the protective search is wholly for the safety of the officer or others.” Potter, 342 Ark. at 630 . This court in Potter, supra, further stated that “police officers are not permitted to search for drugs under the guise of a search for weapons.” Potter, 342 Ark. at 630 (citing Minnesota v. Dickerson, 508 U.S. 366 (1993)). Just six months ago, this court stated that a search is unlawful where the officer is seeking narcotics in searching rather than searching out of fear for his own safety. Jefferson v. State, 349 Ark. 236 , 76 S.W.3d 850 (2002). This is obviously so because only a “protective search” is lawful under these conditions. Potter, supra.

The majority’s decision cannot be squared with prior case law. In Shaver v. State, 332 Ark. 13 , 963 S.W.2d 598 (1998), this court stated:

We have also held that, after a lawful stop, the police are permitted to search the outer clothing of an individual and the immediate vicinity for weapons if the facts available to an officer would warrant a person of reasonable caution to believe that a limited search was appropriate. State v. Barter, 310 Ark. 94 , 833 S.W.2d 372 (1992); Stout v. State, 304 Ark. 610 , 804 S.W.2d 686 (1991); A. R. Cr. P. Rule 3.4. Stated in slightly different terms, when an officer is justified in believing that an individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officers or others, a patdown search may be conducted to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. Terry v. Ohio, 395 U.S. 1 (1968).

Shaver, 332 Ark. at 15 .

Ivy testified that he asked Davis if he had a weapon on him, and that when he asked Davis to stand to carry out the patdown, he did so “for weapons, identification.” However, there is no evidence of any facts that would justify a belief that Davis was armed.

The majority bases its conclusion the search was legal because the officer initiated the patdown search when Davis reached in his pocket. The majority states: “Then the appellant reached toward his pocket saying, ‘[I’ll] give you my sh##’ as he moved his hand toward his pocket. At that point, the officer did not know what appellant was reaching for.” It is not at all clear that these facts would support a reasonable belief that Davis was armed, however, one need not even reach that analysis because these events cited by the majority all occurred after Ivy asked to search Davis and instructed Davis to stand so he could carry out the search. Ivy had initiated the search before Davis reached for his pocket. The evidence shows Ivy had already decided to search Davis before he stood up. The success of the search will not validate the search if it was unlawful in its inception. Willett v. State, 298 Ark. 588 , 769 S.W.2d 744 (1989); Walton v. State, 245 Ark. 84 , 431 S.W.2d 462 (1968).

Ivy testified that he “searched Mr. Davis because he kept giving indications he was possibly fixing to run.” The search was not a protective search. Ivy asked Davis: “Do you mind if I search you?” Davis challenged Ivy’s probable cause, and Ivy commanded Davis to stand up. At that point, Davis said, “You don’t have to go through that shit,” and reached toward his back pocket. Ivy grabbed Davis’s hand and reached into Davis’s pocket. All this occurred after Ivy stated his intent to search, so it is apparent that the reason for the search was to find contraband, not because of officer safety. In Jefferson, a weapon was drawn and the decision to search appellant was made after the appellant slipped his hand in his pocket. In this case, Davis was simply searched for contraband. Nonetheless, contrary to the clearly stated law as set out by this court and the United States Supreme Court, the majority now permits a search for drugs under the guise of a search for weapons.

The conclusion that a patdown was proper is without foundation. This case should be reversed based on an unlawful search.