Petition for Writ of Certiorari — Adams v. Arkansas

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In The waits

Supreme Court of the United States

October Term, 1988

BARTON BOYD ADAMS,

Petitioner,

STATE OF ARKANSAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS COURT OF APPEALS

THAXTON, Hout, Howarp

& NICHOLSON

Attorneys at Law

600 Third Street

Post Office Box 8

Newport, Arkansas 72112

(501) 523-3677

BY: E. Leon NICHOLSON*

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

WHETHER THE INITIAL “APPROACH” OF THE PETI-

TIONER BY THE ARRESTING OFFICER CONSTITUTED

A SEIZURE WITHIN THE MEANING OF THE FOURTH

AMENDMENT, AND, IF SO, WHETHER THE SEIZURE

WAS AN UNREASONABLE INTRUSION UPON THE

RIGHT AGAINST UNREASONABLE SEARCHES AND

SEIZURES AS GUARANTEED BY THE FOURTH

AMENDMENT.

LIST OF PARTIES

The parties in both the Arkansas Court of Appeals

and the lower court (Circuit Court of Jackson County,

Arkansas) were as shown herein.

ili

TABLE OF CONTENTS

Page

ME Oe PINION nn nn a cece cc cccccccacceveccas iv

IIe Anne Pe SIT ot 1

SER ET TR oe lee 1

United States Constitutional Provisions Involved... 2

Cee aa new dalveouwak 3

aie ci ce Nees ce cuaknne sere eee sees 5

I Rn re ee Te | ie! eg Bee os 13

TABLE OF AUTHORITIES

Page

CASES:

Brown v. Texas, 443 U.S. 47 (1979). ..... 06. eee eee 10

Delaware v. Prouse, 440 U.S. 648 (1979) ...........- 11

Michigan v. Chesternut, 486 U.S. __ (1988).........- 9

Reid v. Georgia, 448 U.S. 438 (1980)........-.----+-s 6

Terry v. Ohio, 392 U.S. 1 (1968) ........-.-+--+- 9, 10

U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)......-.. 11

U.S. v. Mendenall, 446 U.S. 544 (1980)............-- 6

CONSTITUTIONAL PROVISIONS:

Fourth Amendment...........--..+++eseeeee0: passim

Fourteenth Amendment............-+:-0++eeeeees 2,5

Ruies Or Court:

2 Gk : aD Are rere rye Te ey tes 1, B

en RR

No.

In The

Supreme Court of the United States

October Term, 1988

BARTON BOYD ADAMS,

Petitioner,

STATE OF ARKANSAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS COURT OF APPEALS

OPINION BELOW

The opinion of the Arkansas Court of Appeals was

rendered on October 26, 1988.

JURISDICTION

This Honorable Court’s jurisdiction to review the

decision of the Arkansas Court of Appeals (No. CACR

88-24) by Petition for Writ of Certiorari is conferred by

Rule 17, Rules of the Supreme Court of the United States.

This Petition is presented within sixty (60) days of the

entry of the Arkansas Court of Appeals opinion on

October 26, 1988, and is, therefore, timely filed in accor-

dance with Rules of this Honorable Court.

UNITED STATES CONSTITUTIONAL

PROVISIONS INVOLVED

The Fourth Amendment to the United States Consti-

tution provides “the right of the people to be secure in

their persons, houses, papers and effects, against unrea-

sonable searches and seizures, shall not be violated ...”

The Fourth Amendment applies to the states through

the Fourteenth Amendment.

No.

In The

Supreme Court of the United States

October Term, 1988

BARTON BOYD ADAMS,

Petitioner,

STATE OF ARKANSAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS COURT OF APPEALS

STATEMENT OF THE CASE

The Petitioner, Barton Boyd Adams, was charged

with the crimes of possession of a controlled substance

(marijuana) with the intent to deliver and possession of

drug paraphernalia in the Circuit Court of Jackson

County, Arkansas, by Information filed by the State of

Arkansas on December 30, 1986.

On October 8, 1987, the Petitioner filed a Motion for

Suppression of all evidence seized during the stop and

search of the Petitioner on December 27, 1986. Petitioner

specifically stated in his Motion for Suppression that the

stop of Petitioner by the arresting officer deprived Peti-

tioner of his rights sanctioned and guaranteed by the

Fourth Amendment to the United States Constitution. A

hearing on Petitioner’s Motion for Suppression was held

on October 13, 1987. At said hearing, the arresting officer

testified that while on routine patrol on December 27,

1986, at approximately 6:30 p.m., he observed a vehicle

adjacent to the running field at Remmel Park (a public

park) in Newport, Arkansas. The officer testified that he

immediately suspected criminal activity based on the

then existing circumstances and, therefore, turned in

behind the vehicle with his headlights shining into the

vehicle and additionally turned his spotlight onto the

vehicle and turned on his “take down” lights. The officer

testified that he stepped from the marked patrol car,

approached the vehicle, tapped on the window and

motioned for the driver to roll the window down. The

officer testified that after the driver rolled the window

down and during his detention of the vehicle, he devel-

oped probable cause to make a search and a subsequent

arrest. The Trial Court denied Petitioner’s Motion for

Suppression apparently ruling that the officer’s initial

stop of the Petitioner was not a “seizure”. The Trial Judge

stated, “... if that vehicle had been moving through the

park, I would have suppressed the evidence. You made

an excellent argument, but it won't float. If he’d been

moving, that would have been suppressed. It would have

been suppressed.” (Trial Transcript, Volume I, Pages 93,

94).

The case came on for jury trial before the Circuit

Court of Jackson County, Arkansas, on October 14, 1987.

At trial, the evidence moved to be suppressed by Peti-

tioner was admitted into evidence, notwithstanding Peti-

tioner’s renewed objections of the constitutionality of the

stop, search and seizure of all such evidence. Following

the jury trial, the Petitioner was found guilty on both

counts with which he was charged. Petitioner was fined

in the sum of $500.00 for the offense of possession of

drug paraphernalia and was fined the sum of $3,000.00

and sentenced to four years in the Arkansas Department

of Corrections for the offense of possession of a con-

trolled substance with intent to deliver.

On March 17, 1988, Petitioner timely filed an Appeal

in the Arkansas Court of Appeals citing as his Point

Relied Upon For Reversal that the lower court erred in

denying the Petitioner’s Motion for Suppression. On

October 26, 1988, the Arkansas Court of Appeals affirmed

the lower Court’s actions, stating in its opinion, inter alia,

that the initial stop or “approach” of the Petitioner by the

arresting officer was not a “stop”, but merely a request

for identification which does not mandate suppression of

the evidence against Petitioner.

ARGUMENT

The Fourth Amendment to the United States Consti-

tution provides, “the right of people to be secure in their

persons, houses, papers and effects, against unreasonable

searches and seizures, shall not be violated ...” The

protection is applied to the States through the Fourteenth

Amendment to the United States Constitution.

Petitioner submits that the arresting officer’s initial

stop, approach or contact with Petitioner on the night of

December 27, 1986, constituted a seizure and that under

all of the circumstances, the seizure was without a consti-

tutionally reasonable basis and that all evidence subse-

quently seized should have been suppressed at trial.

The State of Arkansas adopted the position that

although the same factual scenario as presented in the

case at Bar has never before been presented to an

Arkansas Court, the stop of the Petitioner did not amount

to a seizure. The State of Arkansas submitted that the

seizure did not occur until later during the detention

when the officer “patted down” Petitioner. The State of

Arkansas, therefore, argues and the Arkansas Court of

Appeals agreed that the Fourth Amendment did not

apply to the initial stop and, therefore, the arresting

officer was not required to have a particularized reason-

able suspicion (as required by Arkansas law) for

approaching the vehicle.

Petitioner acknowledges that not all interaction

between policemen and citizens involves “seizures”

within the meaning of the Fourth Amendment. Terry v.

Ohio, 392 U.S. 1 (1968), U.S. v. Mendenhall, 446 U.S. 544

(1980), Reid v. Georgia, 448 U.S. 438 (1980). The law is

equally clear, however, that a seizure takes place when a

police officer uses physical force or a show of authority

that restrains an individual’s freedom of movement or in

view of the circumstances surrounding the incident,

causes a reasonable person to believe that he is not free to

leave. The Arkansas Criminal Rules are consistent with

the decisions of this Honorable Court that a police officer

may stop and frisk an individual based on circumstances

which fall short of probable cause necessary for arrest

and search. Rule 3.1 of the Arkansas Rules of Criminal

Procedure says, in part:

A law enforcement officer lawfully present in any

place, may, in the performance of his duties, 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 or

forcible injury to persons or of appropriation of or

damage to property, if such action is reasonably nec-

essary either to obtain or verify the identification of

the person or to determine the lawfulness of his

conduct.

The standard for a law enforcement officer identified by

Rule 3.1 is “reasonable suspicion”. Rule 2.1 of the

Arkansas Rules of Criminal Procedure defines “reasona-

ble suspicion” as follows:

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 says that while reasonable

suspicion is not equatable with probable cause, it is

somewhat more than an intuitive guess or a hunch.

The Arkansas Court of Appeals stated in its opinion

that it found no fault with Petitioner’s assessment of

Rules 3.1 and 2.1 of the Arkansas Rules of Criminal

Procedure, but that they do not agree that it mandates

suppression of the evidence against Petitioner or that the

present case must be judged by Rule 3.1. The Arkansas

Court of Appeals cited Rule 2.2(a) of the Arkansas Rules

of Criminal Procedure as follows:

A law enforcement officer may request any person to

furnish information or otherwise cooperate in the

investigation or prevention of crime. The officer may

request the person to respond to questions, to appear

at a police station, or to comply with any other

reasonable request.

Petitioner does not challenge the validity or constitu-

tionality of any of the herein described rules of Arkansas

Criminal Procedure. Petitioner does, however, challenge

the constitutionality of their application in accordance

with the Fourth Amendment in the present case. The

Arkansas Court of Appeals is certainly correct in its

recitation of the text of Rule 2.2(a). However, Rule 2.2(a)

applies only when an officer who lacks reasonable suspi-

cion to seize or stop an individual approaches that indi-

vidual to request answers to investigative questions. In

the light of the Fourth Amendment, it simply cannot be

disputed that once that same officer imposes such

restraint over an individual that, in view of all of the

surrounding circumstances, the individual reasonably

believes he is not free to leave, then an intrusion upon

that person’s constitutionally guaranteed rights would

require some particularized or objective justification. In

other words, that individual is protected against unrea-

sonable seizure as guaranteed by the Fourth Amendment

and in Arkansas by Rules 3.1 and 2.1 of the Arkansas

Rules of Criminal Procedure.

Petitioner submits that the record reflects (through

the testimony of the arresting officer) that the arresting

officer’s initial stop or approach of Petitioner was in such

an aggressive manner as to manifest a show of authority

that would intimidate any reasonable person to believe

that he was not free to disregard the officer’s presence

- and go about his business.

In Michigan v. Chesternut, 486 U.S. __ (1988), a

marked police car briefly accelerated to catch up with a

man who turned a street corner and began to run when

he saw the marked police car. The police car drove

alongside the man for a short distance without making

any other aggressive moves to approach, stop or detain

the individual. While alongside the man, the officers

observed him discard a number of packets from one of

his pockets. When one of the officers examined the

packets, they were found to contain pills and they, there-

upon, arrested the man. It was held that the presence of a

police car standing alone does not constitute a seizure

within the meaning of the Fourth Amendment because it

would not have communicated to a reasonable person

that he was not at liberty to ignore the police presence

and go about his business. The “whole picture” of the

case at Bar establishes a greater police presence and show

of authority.

If the issue of whether the arresting officer’s

approach of Petitioner was a seizure is decided in favor

of Petitioner, namely that it was a seizure within the

meaning of the Fourth Amendment, then a determination

should be made regarding the reasonableness, or lack

thereof, of the seizure.

The Court, in Terry v. Ohio, Supra., held that it is first

necessary to focus upon the governmental interest which

allegedly justifies intrusion upon the constitutionally pro-

tected interest of the private citizen in order to assess the

reasonableness of the police officer’s conduct. The police

officer must be able to point to specific and articulable

facts which, taken together with rational inferences from

those facts, reasonably warrant that intrusion in order to

justify the particular intrusion. The governmental interest

involved, of course, is the general interest of effective

crime prevention and detection.

The facts in Terry v. Ohio, Supra., reflect that a police-

man with 39 year’s experience observed the defendant

and two other men go through a series of acts, which

taken together warranted further investigation. Petitioner

submits that in the case at Bar, the arresting officer’s

testimony in and of itself reflects that there was no such

studied observation. To the contrary, the arresting officer

categorized the stop and subsequent arrest of Petitioner

as a “lucky guess”.

In Brown v. Texas, 443 U.S. 47 (1979), this Honorable

Court held that a police officer’s observing a person walk

away from another person in an alley located in a neigh-

borhood which is frequented by drug users does not give

rise to reasonable suspicion to seize or stop the individ-

ual. In Brown, Supra., a seizure occurred only after the

defendant continued to refuse to identify himself to the

police officers and was arrested under a Texas statute

causing such refusal to be a crime. In the present case, the

record reflects that the arresting officer’s suspicions were

raised because the Petitioner was located in an area

where crimes had occurred in the past (although the

arresting officer was unable to identify any particular

crime). Unlike in Brown, Supra., the arresting officer in the

present case did not merely approach Petitioner to ascer-

tain his identity, but aggressively manifested a show of

authority giving rise to a seizure within the terms of the

Fourth Amendment. And when the reasonableness of

that seizure is balanced between the public interest and

Petitioner’s right to Fourth Amendment protection to

arbitrary interference by law officers, in light of the

record (“whole picture”) that balance tilts decidedly in

favor of Petitioner. See U.S. v. Brignoni-Ponce, 422 U.S. 873

(1975). In Delaware v. Prouse, 440 U.S. 648 (1979), this

Honorable Court held that a police officer’s random stop

of an automobile and detention of the driver for check of

driver’s license and vehicle’s registration violated the

Fourth Amendment as an unreasonable seizure. The

Court’s finding was based on the reasoning that the

police officer did not have articulable or reasonable sus-

picion that the motorist was unlicensed or that the auto-

mobile was unregistered or that either the vehicle or the

occupant was otherwise subject to seizure for violation of

law. The Court pointed out that to hold otherwise would

subject every occupant of every vehicle on the roads to a

seizure at the unbridled discretion of law enforcement

officials on the basis of a state interest in promoting

roadway safety. In the present case, Petitioner submits

that the question of his Fourth Amendment rights pro-

tecting against unreasonable searches and seizures were

decided in a way which conflicts with Delaware, Supra.

Petitioner submits to this Honorable Court that based

upon the factual circumstances contained in the record, if

the decision of the Arkansas Court of Appeals stands,

then the local law enforcement officers in Newport,

Arkansas, can stop, question, detain and possibly subse-

quently arrest and search any individual walking

through, driving through or parked in Remmel Park

located in Newport, Arkansas. Such a decision unleashes

the unbridled discretion of law enforcement officers that

Delaware, Supra., intends to prevent.

Petitioner submits that based on the record of the

present case, the arresting officer clearly acted in an

aggressive manner and manifested a show of authority

that would intimidate any reasonable person into believ-

ing that he was being detained and was not free to leave

and resume his business ignoring the police presence.

Petitioner submits that such action by the arresting offi-

cer amounted to a seizure within the definition of the

Fourth Amendment to the United States Constitution.

Additionally, Petitioner submits that when all of the fac-

tual and exigent circumstances reflected in the record are

considered and taken as a “whole picture”, all such cir-

cumstances fail to reflect the specific and articulable facts

necessary to establish reasonable suspicion by the arrest-

ing officer that Petitioner was committing, had commit-

ted or was about to commit or engage in criminal activity

and that his seizure of the Petitioner was, therefore,

unreasonable under the protection of the Fourth Amend-

ment. All evidence seized by the arrest and search subse-

quent to the unreasonable seizure of Petitioner should

have been suppressed at the trial of the Petitioner. With-

out the review of this Honorable Court on Writ of Cer-

tiorari, the question of the reasonableness of the seizure

of Petitioner will go unsettled and the decision regarding

the existence of a “seizure” at the initial stop of Petitioner

by the arresting officer will remain decided in a way in

conflict with the previous decisions of this Court.

CONCLUSION

The guarantees afforded Petitioner against unreason-

able searches and seizures by the Fourth Amendment to

the United States Constitution and made applicable to the

States by the Fourteenth Amendment to the United States

Constitution have gone unprotected and unrecognized.

The issues presented herein fall within the considerations

set forth in Rule 17 of the Rules of the United States

Supreme Court. Petitioner respectfully requests that this

Honorable Court grant his Petition for Certiorari as set

forth herein.

Respectfully Submitted,

THAXTON, Hout, Howarp

& NICHOLSON

Attorneys at Law

600 Third Street

Post Office Box 8

Newport, Arkansas 72112

(501) 523-3677

BY: E. LEON NICHOLSON*

*Counsel of Record

APPENDIX “A”

DIVISION II

ARKANSAS COURT OF APPEALS

No. CACR 88-24

Opinion Delivered OCTOBER 26, 1988

BARTON BOYD ADAMS_) APPEAL FROM JACKSON

APPELLANT ) CIRCUIT COURT

Vv. } HONORABLE HAROLD S.

STATE OF ARKANSAS _ ) ERWIN, JUDGE

APPELLEE ) AFFIRMED

MELVIN MAYFIELD, Judge

Appellant, Barton Boyd Adams, appeals (1) his con-

viction of possession of a controlled substance with intent

to deliver for which he was sentenced to pay a fine of

$3,000.00 and to serve four years in the Arkansas Depart-

ment of Correction, and (2) his conviction of possession

of drug paraphernalia for which he was fined $500.00.

There is evidence that Officer Joe Newsom of the

Newport Police Department was on routine patrol about

6:30 p.m. on December 27, 1986, when he noticed a car,

with no lights on, parked in a dark area near the high

school. He also noticed that the vehicle was occupied but

the motor was not running even thought the weather was

cold. Because of these facts and because there had been

several burglaries in the area, Newsom pulled in behind

the car and turned his spotlights on it. He approached the

car on the driver’s side, tapped on the window and asked

to see the identification of the two occupants. When the

window was rolled down, the officer smelled a strong

odor of marijuana coming from inside the vehicle.

Newsom then radioed his headquarters for a license

check on the car and warrant check on the occupants.

While waiting for the results, he observed the male pas-

senger, appellant herein, making unusual movements as

if he were stuffing something down the front of his pants.

Newsom then went to the passenger’s side of the car,

asked appellant to get out of the car and when he did,

Newsom frisked him. A large plastic bag containing

seven small plastic bags of what the officer recognized as

marijuana, two roach clips, and some scales were found.

At a hearing on appellant’s motion to suppress the

evidence, in response to questions by defense counsel,

Officer Newsom characterized his actions as a “lucky

guess, policemen’s intuition, just a hunch.” Appellant

points out that under A.R.Cr.P. Rule 3.1, a law enforce-

ment officer in the performance of his duties may stop

and detain a person whom 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

property.” “Reasonable suspicion” is defined in A.R.Cr.P.

Rule 2.1 as:

[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.

According to the commentary on A.R.Cr.P. Rule 2.1, a

reasonable suspicion is not the equivalent of probable

cause but is “somewhat more than an intuitive guess or

hunch.” Appellant, therefore, emphasizes Officer

Newsom’s testimony that his investigation of appellant’s

car was only a hunch, policemen’s intuition, or a lucky

guess and concludes there was no reasonable suspicion

for a stop. Appellant argues there was a violation of his

rights under the Fourth and Fourteenth Amendments to

the United States Constitution and that, under the exclu-

sionary rule, the evidence seized should have been

suppressed.

Appellant cites Reeves v. State, 20 Ark. App. 17, 722

S.W.2d 880 (1987), where we explained that the justifica-

tion for an investigative stop depends upon whether,

under the totality of the circumstances, the police have

specific, particularized, and articulable reasons to suspect

that the person or vehicle may be involved in criminal

activity. 20 Ark. App. at 22. See also Hill v. State, 275 Ark.

71, 628 S.W.2d 284 (1982), cert. denied, 459 U.S. 882 (1982).

Appellant then cites Van Patten v. State, 16 Ark. App. 83,

697 S.W.2d 919 (1985), where we reversed a conviction of

driving while intoxicated because the police officer who

stopped appellant did not have specific, particularized,

and articulable reasons to suspect that a crime had been

committed.

While we find no fault with appellant’s assessment of

the law as stated in the cited cases, we do not agree that it

mandates suppression of the evidence against him. In Van

Patten, a Little Rock policeman received two radio calls,

shortly after 11:30 p.m., in regard to a loud party distur-

bance at an apartment complex and a suspect who had

driven off in a brown Jeep. The officer spotted a brown

Jeep at an intersection near the apartments, stopped it,

and discovered that the driver staggered and smelled

strongly of alcohol. Although he registered 0.15% blood

alcohol on the breathalyzer machine, his conviction for

driving while intoxicated was reversed because a major-

ity of this court thought that the officer making the stop

did not have a “reasonable suspicion” the appellant had

been involved in criminal activity. The court thought that

A.R.Cr.P. Rule 3.1 had been violated because the radio

dispatches gave very vague, general information about a

loud party and a brown jeep and the officer had not

confirmed the complaint before stopping appellant.

We do not agree, however, that the present case must

be judged by Rule 3.1. Another Rule of Criminal Pro-

cedure, Rule 2.2(a), provides:

A law enforcement officer may request any person

to furnish information or otherwise cooperate in the

investigation or prevention of crime. The officer may

request the person to respond to questions, to appear

at a police station, or to comply with any other

reasonable request.

In Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982),

a Little Rock police officer stopped appellant’s car in a

park, near a jewelry store that had just been robbed, to

inquire if appellant had seen anyone else in the park.

That stop led to the discovery of two suspects in the

jewelry store robbery who were in appellant’s car and to

the recovery of the jewelry and two guns. The Arkansas

Supreme Court examined the validity of the stop and

found it reasonable under Rule 2.2(a). The court’s opinion

stated:

The crucial issue in this case is whether the initial

stop of appellant was valid under state and federal

law. If the stop is found to be valid, the logical

progression of events which followed resulted in

probable cause for the arrest. The subsequent search

ieee

of appellant’s car after the arrest was a search inci-

dent to a lawful arrest and valid under the recent

case of New York v. Belton, 450 U.S. 1028, 101 S.Ct.

2860 (1981).

Cases regarding the police authority to make inves-

tigatory stops based upon reasonable suspicion that a

vehicle or a person is involved in criminal activity

are inapplicable to the stop at issue here. See U.S. v.

Cortez, 449 U.S. 411 (1981) and Terry v. Ohio, 392 U.S.

1 (1968)... .

Involved here is the question of the extent of per-

missible interruption a citizen must bear to accom-

modate 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.

There is noting in the Constitution which prevents

the police from addressing questions to any individ-

ual. 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

individual’s 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. ]

Rule 2.2, Ark. Rules Crim. Proc., Ark. Stat. Ann.,

Vol. 4A (Repl. 1977) is a codification and an accom-

274 Ark. at 542-43.

The federal courts have reached the same conclusion

reached in Baxter. In United States v. Pajari, 715 F.2d 1378

(8th Cir. 1983), D.E.A. officers had obtained a search

warrant for appellant’s house. After this, he was seen

driving down the street and agents followed him as he

pulled into a parking lot and stopped. The agents then

approached the car to ask him to be at his house when

the search took place. When appellant made a suspicious

move, which agents interpreted as possibly reaching fora

gun, they ordered him out of the car, and while conduct-

ing a pat-down search, they found cocaine. On appeal, he

argued that the officers’ initial approach to his car

amounted to an unlawful seizure, supported by neither

probable cause nor reasonable articulable suspicion that

he was engaged in wrongdoing. The court stated:

In this case, we conclude that there was no “seiz-

ure” or “stop” until Pajari was ordered to raise his

hands and leave his car, which was prompted by

Detective Fontana’s reasonably based fear that Pajari

was reaching for a weapon. Only at the point when

Pajari was ordered to raise his hands and exit the car

was there any demonstration of force or authority

creating a reasonable apprehension on Pajari’s part

that his freedom of movement was restrained.

715 F.2d at 1381.

The District of Columbia Court of Appeals consid-

ered a case similar to the instant case in Purce v. United

States, 482 A.2d 772 (D.C. 1984). On a routine patrol

through a parking lot where several cars had been broken

into, an officer discovered appellant asleep in a car regis-

tered to a woman. The officer tapped on the window,

woke the appellant and asked for identification. While

appellant was searching his pockets and the glove com-

partment, the officer noticed a package of cigarette

papers and a brown manila envelope of the sort com-

monly used to package marijuana lying on the console

between the two front seats. The officer again asked for

identification, and when none was presented, the officer

asked appellant to get out of the car. As appellant

stepped out, he reached back inside to get his shoes, and

the officer observed what he thought was a gun. Appel-

lant was then patted down and the floor mat of the car

was lifted. This exposed a gun, and the appellant was

arrested for firearms violations. He moved to suppress

the evidence on the grounds that the officer’s request for

identification was a seizure and the officer had no articu-

lable suspicion that appellant was involved in criminal

conduct. The court held that “as a matter of law, a request

for identification cannot constitute a show of authority

sufficient to convert an innocent encounter into a sei-

zure.” 482 A.2d 775. See also United States v. Poitier, 818

F.2d 679 (8th Cir. 1987).

In a case factually similar to the one at bar, the Texas

Court of Criminal Appeals, in Merideth v. State, 603

S.W.2d 872 (Tex. Crim. App. 1980), affirmed a conviction

of misdemeanor possession of marijuana, rejecting appel-

lant’s argument that there was an unlawful search and

seizure when the police detected the odor of marijuana

after appellant opened the door of his pickup truck in

response to their knock. The court said:

Appellant contends that this was an “investigative

stop” and that there was no information available to

justify the intrusion. . . . We disagree. This was not an

investigative stop. The appellant was not “stopped”

by the officer nor was the appellant detained in any

manner by the officer until the marihuana was dis-

covered. [Citations omitted.]

When the facts of the case at bar are carefully scruti-

nized, we think they will support a finding that, under

the provisions of A.R.Cr.P. Rule 2.2(a), Officer Newsom

was authorized to request identification information from

appellant and the other occupant of the car parked near

the high school as a part of his duty to invesigate and

prevent crime. We think this was done without a “stop”

as referred to in A.R.Cr.P. Rule 3.1. Then, when the car

window was rolled down and Newsom smelled mari-

juana, he had a “reasonable suspicion” that the occupants

of the car were committing, had committed or were about

to commit a crime which authorized the officer to detain

them for a reasonable period under A.R.Cr.P. Rule 3.1 in

order to verify their identification or determine the law-

fulness of their conduct. Then, when the officer saw the

appellant stuffing something down the front of his pants,

“there was a logical progression of events” which

resulted in probable cause for arrest and the right to

search for and seize the marijuana and drug parapher-

nalia introduced into evidence. Baxter v. State and Purce v.

United States, supra. See also United States v. Robinson, 414

U.S. 218 (1973) (search incident to arrest on probable

cause requires no other justification).

Affirmed.

Cooper and Coulson, JJ., agree.

JUDGMENT AND COMMITMENT ORDER

IN THE CIRCUIT COURT OF

JACKSON COUNTY, ARKANSAS

DISTRICT DIVISION

On October 14, 1987, the defendant personally

appeared before the Court with legal counsel and, having

been informed by the Court of the nature of the charge(s),

of his constitutional and legal rights, of the effect of a

guilty plea upon those rights, and of his right to make a

statement before sentencing, the Court made the fol-

lowing findings: (check one applicable) [ ] Defendant

voluntarily, intelligently, and knowingly entered a plea

of [] guilty or [ ] Nolo Contendere to the charge(s)

herein enumerated and acknowledged factual basis for

charge(s); [ ] Defendant is found guilty of said

charge(s) by the Court, sitting as trier of fact; [x] Defen-

dant was found guilty at jury trial.

CHANGE OF VENUE FROM ; DEFEN-

DANT’S FULL NAME: Barton Boyd Adams; DATE OF

BIRTH 9/9/56; RACE W; SIX M; SID NUMBER

DEFENDANT’S ATTORNEY Leon Nicholson;

{] PV [] AP [x] PD [] SELF; PROSECUTING

ATTORNEY OR DEPUTY Jim Stallcup.

There being no legal cause shown by the defendant,

as requested, why judgment should not be pronounced

against him, a judgment of conviction is hereby entered

against the defendant on each charge enumerated and

court costs assissed. The County Sheriff is hereby ordered

and directed to transport the defendant to [x] The

Arkansas Department of Correction or [ ]

County Jail, where he is sentenced to hard labor for the

term specified on each charge:

STATUTE NO. 82-2617; OFFENSE Possession of a

controlled substance with intent to deliver; OFFENSE

DATE 12/27/86; DOCKET NO. CL86-194; COUNTS 1;

F/M ; CLASS C; SENTENCE 4; SUSPENDED

NONE.

——

10a

STATUTE NO. 82-2619; OFFENSE Possession of drug

paraphernalia with intent to use; OFFENSE DATE

12/27/86; DOCKET NO. CL86-194; COUNTS 1; |

F/M ; CLASS C; SENTENCE ; !

SUSPENDED

If consecutive, explain:

TIME TO SERVE AT A.D.C.: 4 years. OTHER SEN-

TENCING PROVISIONS [ ] HABITUAL (43-2320);

[ ] FIREARM (41-1004/42-2336); [ ] DEADLY WEAPON

(43-2336.1); [ ] OTHER:

OTHER PAROLE ELIGIBILITY PROVISIONS; Alternative

Services (Act 378) (43-2340). The defendant knowlingly

and willingly consents to sentence provisions:

[ ] 43-2342(c) - Eligible for parole immeidately;

[ ] 43-2342(d) - Eligible for parole as normal.

EXPLANATORY NOTES: Possession of controlled

substance with intent to deliver. 4 years and $3,000 fine

and possession of drug paraphernalia with intent to use a

fine of $500.

OTHERFINE $3500.00; RESTITUTION $ __ ; COURT

COSTS $165.00. [ ] DEATH PENALTY; EXECUTION

DATE:

[x] DEFENDANT INFORMED OF RIGHT TO

APPEAL; JAIL TIME CREDIT: __. OR [ ] NONE.

BOARD PROVISIONS:

DATE 10-14-87; CIRCUIT JUDGE (Print or Type)

Harold S. Erwin; CIRCUIT JUDGE (Signature) Harold S.

Erwin. '

DATE 10-15-87; I certify this is a true and correct

record of this Court with short report of circumstances

heii,

lla

attached. CIRCUIT CLERK DEPUTY (SEAL) /s/ Don

Daniels.

DATE 10-14-87; I acknowledge receipt of judgment.

Barton Boyd Adams; DEFENDANT (Signature) /s/ Bart

Adams.

SHERIFF’S RETURN

DATE REL. ON APPEAL BOND ; DATE RET.

TO CUSTODY ; I certify the defendant named

within was delivered to: [] The A.D.C. or [] __

County Jail; DATE ; SHERIFF/DEPUTY

(Signature)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.