# Opposition Brief — Arkansas v. Sullivan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 769

## Text

“4
No. 00-262

IN THE
United States Supreme Court

STATE OF ARKANSAS,

Petitioner,
Vv.
KENNETH ANDREW SULLIVAN,

Respondent.

ON PETITION OF WRIT OF CERTIORARI
TO THE SUPREME COURT OF ARKANSAS

BRIEF IN OPPOSITION

JOHN WESLEY HALL, JR.*
523 West Third Street

Little Rock, Arkansas 72201
(501) 371-9131

DAVID M. SIEGEL
aad ee New England School of Law
Dat atta . 154 Stuart Street
;

Off. Taylor radioed in to run Sullivan’s information through the computer and got no wants
or warrants. (R. 69) If there was information that suggested that the vehicle was not registered or
insured, he would have learned it then.

3. Off. Taylor admitted that, had he not seen the roofer’s hammer, he would have been
3

weapon be “available for use with a purpose to employ it as a weapon against a person,”
Ark. Code Ann. § 5-73-120(a). (R. 58) The officer admitted in his testimony, however,
that nothing suggested to him Sullivan’s intent to use it as a weapon (R. 61),* that he never
even touched the roofing tool until the inventory started (R. 42), and that he had asked
Sullivan for consent to search for other weapons, which was not done until the inventory
(and no other “weapons” were found). (R. 55)’

Off. Taylor called for assistance to transport Sullivan, and he began an inventory of
the vehicle as required by Conway Police Department policy. Although he testified that
“this was not an overly curious stop” to him (R. 47), the inventory literally started as
expeditiously as humanly possible, before any tow vehicle could have arrived, and even
before the assisting officer’s car taking Sullivan to jail could pull out into traffic on U.S.

65. (R. 43)* The officer admitted that he could not have searched the vehicle but for the

required to issue only a citation for the speeding, registration and insurance violations. (R. 62-63)
It was only the presence of the “weapon,” the possession of which was a Class A misdemeanor,
which required that Sullivan be brought to the station in order to be fingerprinted. (R. 63) The
Conway Police Department has no policy of which Off. Taylor was aware to assist officers in
determining what is and is not a weapon.

4. The trial judge expressly found that it was mof a weapon. (R. 82) Defense counsel in the
trial court argued that it was a tool of Sullivan’s trade. (R. 72)

5. If the officer feared weapons, he had the authority to conduct a protective weapons search
of the vehicle without petitioner’s consent on reasonable suspicion. Michigan v. Long, 463 U.S.
1032, 1049-50 (1983).

There is also somewhat of a conflict in his testimony on this score because, at another point,
he testified that he did not request to look inside the vehicle. (R. 47)

6. The speed with which the officer undertook the inventory search is telling. The trial judge
did not specifically comment on it, but it would seem that it had some influence on his fact finding
of the reason for the arrest.

physical arrest. (R. 63) Off. Taylor found a quantity of methamphetamine and some
suspected marijuana in a black bag under the armrest. (/d)

B. _‘ The officer’s absolute discretion in Arkansas to convert a citable stop for a non-
jailable traffic offense into full custodial arrest.

The officer testified that he essentially had absolute discretion to subject any

motorist stopped for any traffic offense to a custodial arrest on his whim:
Q. What factors, if any, do you take into consideration when you make a
stop of whether you’re going to issue a citation or make a physical arrest?
A. _ There are several; how busy the day has been, what the productivity
has been like, if I have written several citations or if I haven't, attitude of the
individual I’ve stopped, and what laws have been broken here.

If you’re implying as to if there’s a quota, no. . . . If I'd been basically
working for five hours or four hours and haven’t done anything there at all, been
what some folks might-would characterize as being lazy, not doing anything, it’s—I
like to go out and work.

So if Mr. Sullivan had been the first or the second or forth [sic] individual
that | had stopped that da;;, I’m basically fixing to end up the day with some activity
right there. If I had stopped someone else before him right there, and they had this
very same thing, then they may have been the one to have gone to jail there.

[.. .]
Q. __... I'm talking about the difference between issuing a citation and a
physical arrest.
A. If stop someone for speeding or anything, that’s something | can let
go with a citation. (bracketed material added) (R. 57-58)
He further testified that Conway Police Officers are to issue citations for all misdemeanors
as a matter of Departmental policy, but that for class A misdemeanors, the offender has to
be fingerprinted and processed before being cited. (R. 62-63) So, the physical arrest
naturally evolves into an inventory (R. 63) even though the offender will shortly be
released on a citation and could shortly return and retrieve his vehicle, which the officers in

Conway, Arkansas do not permit.

C. ‘The trial court’s holding and the Arkansas Supreme Court’s affirmance

The trial judge suppressed the search finding it unreasonable. The trial judge found
that, while the “stop” was lawful, because it was based upon probable cause from the radar
reading, the officer’s decision to arrest rather than cite Sullivan because of the drug
intelligence information was problematic. The trial judge found that the arrest was made
only because the officer had determined to charge Sullivan with possession of the weapon,
an offense for which he held there was simply no probable cause:
He testified that once he got him stopped, he recognized him as someone that
he had seen intelligence on regarding narcotics, and he- rather than write citations,
he physically arrested him. And then the weapons charge, | think, was just added to
that. And I don’t believe that in this particular instance that the— that that was
appropriate, and I’m going to grant the defendant’s motion to suppress the evidence
seized as a result of the search. (R. 81)
The State then specifically sought and was refused a ruling by the trial judge that the
roofing tool at issue could constitute a “weapon” under Ark. Code Ann. § 5-73-120(a),’
although he admitted it had a blade such that in theory it qualified as a “knife.”

MR. CLARK: Okay.... [Would the Court make a finding that that does meet

the definition of a knife pursuant to the statute? Is there any question in the Court’s
mind about that?

7. Ark. Code Ann. § 5-73-120(a-b) provide:

(a) | Aperson commits the offense of carrying a weapon if he possesses a handgun,
knife, or club on or about his person, in a vehicle occupied by him, or otherwise readily
available for use with a purpose to employ it as a Weapon against a person.

(b) As used in this section, unless the context otherwise requires.

(2) “Knife” means any bladed hand instrument that is capable of inflicting serious
physical injury or death by cutting or stabbing. It includes a dirk, sword or spear in a cane,
razor, ice pick, and a throwing star, switchblade, and butterfly knife[. }

6

THE COURT: That it meets the definition of a knife?

MR. CLARK: Yes, being a bladet! weapon capable of-—or a hand instrument—any
bladed hand instrument that is capable of inflicting serious physical injury or death
by cutting.

THE COURT: Under the circumstances of this case, I don’t think | can find that
that’s a weapon. (R. 81-82).

All the findings of fact on the search and pretext were found not to be clearly
erroneous by the Arkansas Supreme Court. State v. Sullivan, 340 Ark. 315, 318, 11
S.W.3d 526, 528 (not against the preponderance of the evidence), reh. den., 340 Ark. 318-
A, 16 §.W.3d 551 (2000). The Arkansas Supreme Court also held that it would not
sanction using the traffic laws to search any vehicle the officers wanted. /d.:

The question then becomes whether appellee would have been arrested
simply for traveling forty miles per hour in a thirty-five mile-per-hour zone and
possessing a roofing hatchet that had clearly been in his vehicle for quite a long
time, given that it was corroding into the carpet. We find that to be doubtful. His
vehicle may have been impounded due to his failure to provide proof of insurance
and registration. However, appellee was never charged with having no proof of
insurance or vehicle registration. Further, the tral court, when assessing the credi-
bility of Officer Taylor (the sole witness at the hearing), the totality of the circum-
stances, and the applicable law, agreed with appellee that the search and seizure was
pretextual and should be suppressed. Clearly, a review of the applicable law
illustrates that the issue of pretext necessarily turns on the facts in a given case, and
given our standard of review in these cases, we cannot say that the trial court's

ruling was against the preponderance of the evidence.
D. How Whren v. United States came into the case on rehearing

The tortured path of this case to this Court and the State’s Question Presented on
application of Whren v. United States, 517 U.S. 806 (1996), to these facts by the Arkansas
Supreme Court is underscored by the fact that nobody bothered to cite Whren in this case

until the petition for rehearing in the Arkansas Supreme Court. Respondent’s counsel

ee 9 nape,

oT ST IN —

never cited it (or even tried to explain it away), and with apparent justification since prior
Arkansas cases on pretext at least allowed his argument. The State did not cite it in its
Response to the Motion to Suppress (R. 27), its argument to the trial court, or its brief in
the Arkansas Supreme Court (Appt’s Brief, CR99-1140, filed Nov. 18, 1999). In short,
everyone was content to rely on Arkansas cases until the Arkansas Supreme Court ruled.

After the State lost in the Arkansas Supreme Court, it complained that the Court had
committed a “a significant error of law” by not applying a case no one had bothered to cite
to it. (Pet. for Rehearing, filed Feb. 17, 2000 at 1-2). The Arkansas Supreme Cou.t
mentioned this oversight. State v. Sullivan, 340 Ark. 318-A, 16 S.W.3d 551 (2000)
(supplemental opinion on rehearing) (“The State presents us with the Whren case for the
first time on rehearing and argues that, under Whren, a police officer may arrest someone
for a minor traffic violation, knowing full well that the real reason for the arrest is to enable
a search of the vehicle for a suspected crime.”) & id. at 318-D, 16 S.W.3d at 553 (dissent-
ing opinion) (“It is true that our opinion did not discuss Whren, but only because that case
was neither cited nor argued to this court.”)

In the original unanimous opinion handed down February 10, 2000, the Arkansas

Supreme Court affirmed the tral court’s finding that the search was unreasonable because

the arrest was pretextual. 340 Ark. at 318, 11 S.W.3d at 528 (quoted supra). On rehear-

ing, the Arkansas Supreme Court divided 4-3 on application of Whren, but the majority still
granted great deference (as it should) to the trial judge’s findings. 340 Ark. at 318-C, 16

S.W.3d at 552-53:

Here, the trial court found that the arrest was pretextual and made for the
purpose of searching Sullivan’s vehicle for evidence of a crime. Again, we do not
believe that Whren disallows this. Moreover, even if we were to interpret Whren to
give full rein to law enforcement to effect pretextual arrests for traffic violations,
there is nothing that prevents this court from interpreting the LS. Constitution more
broadly than the United States Supreme Court, which has the effect of providing
more rights. We arguably have done so with our Criminal Rules that provide more
stringent requirements for nighttime searches than Court decisions. See Ark. R.
Crim. P. 13.2(c); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991).

In sum, we will not give carte blanche approval for all pretextual arrests for
traffic violations, as the State would have us do. We draw a clear distinction
between arresting a person with crack cocaine in his hands as was the case in Whren
and effecting a pretextual arrest for purposes of a search, such as we have in the
instant case. Surely that flies in the face of reasonableness, which is the essence of
the Fourth Amendment. See State v. Holmes, supra. We will decide the reasonable-
ness of the arrest and search on a case-by-case basis, as the Whren decision makes
clear. For these reasons, we deny the State’s petition for rehearing. (footnoted
added)

Thus, the Arkansas Supreme Court upheld the trial court’s finding that officers of
the State did not have complete discretion to arrest a motorist rather than cite the motorist
for a traffic offense just so the officer could conduct a search of the vehicle; to rule other-
wise, the court reasoned, would be make the search unreasonable under the Fourth Amend-
ment.

The three dissenting justices found Whren controlling and added that a custodial
arrest was valid for any traffic offense under Ark. R. Crim. P. 4.1(a)(iii) “which states that
‘a law enforcement officer may arrest a person without a warrant if the officer has reason-
able cause to believe that such a person has committed . . . any violation of law in the
officer’s presence.’ (Emphasis added.)” 340 Ark. at 318-F, 16 S.W.3d at 554 (dissenting

opinion).

REASONS FOR DENYING THE WRIT

I. The Decision of the Arkansas Supreme Court, However Inartfully Stated, Is

Based on Adequate and Independent State Grounds in Interpreting State Law;

Certiorari Should Thus Not Be Granted.

The Arkansas Supreme Court’s opinion on rehearing cited Arkansas law for the
proposition that it could provide greater protections for a criminal defendant than are
afforded under the federal constitution. 340 Ark. at 318-C, 16 S.W.3d at 552-53 (“See Ark.
R. Crim. P. 13.2(c); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991)”). Ark. R.
Crim P. 13.2(c) affords Arkansas citizens greater protections from nighttime searches than
does the Fourth Amendment, a point which Garner v. State made clear. Indeed, in Garner,
the Arkansas Supreme Court had expressly declined to apply the good faith exception of
United States v. Leon, 468 U.S. 897 (1984), to a nighttime search warrant issued without a
factual basis: “Our concern today is for the integrity of our Rules.” Garner v. State, 307
Ark. 353, 359, 820 S.W.2d 446, 450 (1991) (emphasis supplied).

But Garner was not the first nighttime search case in which the Arkansas Supreme
Court had construed Arkansas Rules of Criminal Procedure to provide citizens greater
protections from improperly authorized nighttime searches than does the Fourth Amend-
ment. In fact, it had done so consistently, having rejected in 1980 the argument that it

should follow any federal standard.* By relying on Garner, the Arkansas Supreme Court’s

8. Arkansas has consistently held its nighttime search rule to be so fundamental that a
substantial violation of the rule cannot be saved by the good faith exception under Leon. See, e.g.,

10

opinion on rehearing in this case thus referenced a state rule of criminal procedure, and a
state law decision, which itself had emphatically rejected applying a federal constitutional
standard, and which reflected an independent siate constitutional standard that was two
decades old. Reliance on Garner is all that is required.

That the issue was presented as a matter of state law at the hearing and in the
original briefs in the Arkansas Supreme Court and on rehearing is hardly surprising; both
parties and the trial court had always analyzed it as such. Respondent in the trial court
grounded his motion to suppress on the Arkansas Constitution,’ the federal constitution,
and the Arkansas Rules of Criminal Procedure. (R. 19) He cited exclusively state cases

(one of which referenced a 1932 U.S. Supreme Court opinion'®), for the proposition that

Fouse v. State, 337 Ark. 13, 21-23, 989 S'W.2d 146, 150-51 (1999) (quoting Garner, 307 Ark. at
358-59, 820 S W.2d at 449-50, and the reference to “ovr Rules, but also by our state and federal
constitutions.”); Langley v. State, 66 Ark. App. 311, 314, 990 S. W.2d 575, 577 (1999); Richardson
v. State, 314 Ark. 512, 519, 863 S.W.2d 572, 576 (1993); Thompson v. State, 42 Ark. App. 254,
259, 856 S.W.2d 319, 321 (1993); Carpenter v. State, 36 Ark. App. 211, 214, 821 S.W.2d 51, 53
(1991); State v. Martinez, 306 Ark. 353, 356-57, 811 S.W.2d 319, 321 (1991); Hall v. State, 3
Ark. 341, 344, 789 S. W.2d 456, 458-59 (1990). .

In fact, the Arkansas Supreme Court first held that the violation of its nighttime search rule
was “substantial” for state exclusionary rule purposes four years before Leon was decided in State
v. Broadway, 269 Ark. 215, 217-18, 599 S.W.2d 721, 723 (1980). In Broadway, the Arkansas
Supreme Court held that evidence would be suppressed if the search violated the Fourth Amend-
ment, the Arkansas Constitution, art. 2, § 15, or Ark. R. Crim. P. 16.2 (requiring suppression only
if the violation was “substantial”). Broadway, 269 Ark. at 217-18, 599 S.W.2d at 723. The
Arkansas Supreme Court explicitly rejected the State’s reliance on federal cases on that point. /d
at 217, 599 S.W.2d at 723. Chief Justice Fogleman dissented on the ground that the court should
start with the Fourth Amendment in construing Rule 16.2; id at 218-19, 599 S.W.2d at 724;
something the majority expressly declined to do.

9. The motion cited generally Ark. Const., art. 2, but the search and seizure provision is art.
2, § 15.

10. United States v. Lefkowitz, 285 U.S. 452 (1932).
1]

a

there was “no reasonable basis to believe that the roofing hammer/hatchet was to be used as
a weapon.” (R. 23) The State’s four sentence response in the tnal court cited the siate
Constitution, the state rules of criminal procedure, and a single state case, as well as the
“Constitution of the United States of American [sic].” (R.27) On appeal, respondent cited
exclusively state cases, three rules of state criminal procedure, and the Arkansas and
federal constitutions in his brief in the Arkansas Supreme Court. (Appee’s brief, No.
CR99-1140, at 14-15). The State cited state law, state rules of criminal procedure, and a
single state case in its brief. It simply defies credulity to suggest that a case injected only
after two courts had ruled against the State, after argument and briefing of the matter twice,
somehow was the basis for the decision of the Arkansas Supreme Court.

The Arkansas Supreme Court simply held that it could consider, in assessing the
absence of probabie cause for an arrest, the fact that the arrest wee pretextual. Nothing in
United States v. Whren precludes this. Moreover, it is also indisputable that the Arkansas
Supreme Court is free to interpret the Arkansas Constitution and the Arkansas Rules of
Criminal Procedure as more protective of an individual’s rights than is the federal constitu-
tion, and is the obvious intended point in the opinion’s paragraph which specifically
references a well-established principle of state /aw and state rules of cnmuinal procedure:

Here, the trial court found that the arrest was pretextual and made for the
purpose of searching Sullivan’s vehicle for evidence of a crime. Again, we do not
believe that Whren disallows this. Moreover, even if we were to interpret Whren to
give full rein to law enforcement to effect pretextual arrests for traffic violations,
there is nothing that prevents this court from interpreting the U.S. Constitution more

broadly than the United States Supreme Court, which has the effect of providing
more rights. We arguably have done so with our Criminal Rules that provide more

12

stringent requirements for nighttime searches than Court decisions. '!
340 Ark. at 318-C, 16 S.W.3d at 552. The proposition that this Court’s interpretation of
the federal constitution is binding upon the courts of the several states hardly menits a grant
of certiorari. Respondent would submit that it is not only generally known, but that it is
also known to the Arkansas Supreme Court.

The mere fact the Arkansas Supreme Court cites Garner shows that its decision was

grounded on Ark. R. Crim. P. 16.2 and not the Fourth Amendment.

Il. As Decided by the Arkansas Supreme Court, this Case Does Not Implicate

United States v. Whren, and Thus Certiorari Should Not Be Granted.

The Arkansas Supreme Court rested its opinion on rehearing on the ground that
Whren did not preclude a pretextual arrest being found unreasonable because it lacked
probable cause. In Whren, the Court unanimously “foreclose{d] any argument that the
constitutional reasonableness of traffic stops depends on the actual motivations of the
individual officers involved.” Whren, 517 U.S. at 812. The stop in this case, however, was
never alleged to be pretextual. The determination that there was probable cause to charge
a roofer with possession of a weapon (to wit, a roofer’s hammer, a normal tool of respond-
ent’s trade) was found to be legally unsupportable and factually pretextual on the rather
simple record in this case.

11. Perhaps the Arkansas court misspoke and said “U.S. Constitution” and not the
“Arkansas Constitution.” Nevertheless, the reference to Garner v. State should eliminate any
Senin .

13

That Whren forecloses inquiry into the subjective motivations of the arresting officer
as a facial basis for suppression does not mean that it forecloses inquiry into whether the
arresting officer had probable cause for his actions. In fact, in Whren, this Court distin-
guished cases in which searches had proceeded without probable cause as ones in which
subjective motivations were appropriate constitutional considerations. See Whren, 517
U.S. at 818 (citing Delaware v. Prouse, 440 U.S. 648 (1979) (random traffic stops), United
States v. Martinez-Fuerte, 428 U.S. 543 (1976) (checkpoint stops), and United States v.
Brignoni-Ponce, 422 U.S. 873 (1975) (roving patrol stops) as all distinguishable “because
they involved seizures without probable cause”).

Similarly, this Court just held that the Whren limitation on subjective intent did not
foreclose inquiry into “programmatic purposes [which] may be relevant to the validity of
Fourth Amendment intrusions undertaken pursuant to a general shemoutinaietidte’,
ized suspicion.” City of Indianapolis v. Edmunds, 531 US. _, _ (slip op. at 13), 2000
WL 1740936, 2000 U.S. Lexis 8084 (No. 99-1080; Nov. 28, 2000). Here, there is a strong
inference that the tial judge was concerned with Off. Taylor’s being assigned to a Drug
Interdiction Unit with the primary purpose of “find{ing] dope.” Hence, he found as a fact
that the custodial arrest pretextual for a drug search. Under Whren, it would seem on the
sutves Ocn0n testis Gilesfcetmn cnet *menate"” However, in this case,
the officer has the programmatic ability, sanctioned by Ark. R. Crim. P. 4. 1(a)iii), as he
testified, to make a custodial arrest in any traffic stop that he conducts, completely on his

individual whim. That is a scary thought.

14

Even if this Couft were to conclude that Whren was somehow implicated by the
Arkansas Supreme Court’s consideration of the pretextual nature of the charge in determin-
ing probable cause, Whren is factually different than this case, as the Arkansas Supreme
Court recogriized in distinguishing it. In Whren, the officer approached the car after the
traffic stop and observed drugs in plain view in the occupant’s lap. In this case, the officer
engaged in a pretextual arrest to conduct an inventory which produced the drugs. 340 Ark.
at 318-C, 16 S.W.3d at 552-53. There has to be a constitutional difference between the
two, and this case gives the Court the chance to articulate it.

The closest parallel case to this one is State v. Varnado, 582 N.W.2d 886 (Minn.
1998), where the Minnesota Supreme Court distinguished Whren and held that a pretextual
traffic stop upon entering “a parking lot of an apartment complex known for drug traffick-
ing” (id. at 888) for a cracked windshield led to the driver being frisked before being placed
in the police car was unreasonable because the officers had no reason to believe that
weapons or contraband would be found. /d at 892. The Minnesota court had previously
held that a pretextual inventory violated the Fourth Amendment in State v. Holmes, 569
N.S.2d 181, 188 (Minn. 1997) (“the [Whren] Court noted it — uphold as valid
police attempts to use the objective basis for an inventory search as a pretext for a purely
investigatory search.”). (In neither of these cases did the State of Minnesota seek review in
this Court.)

The Washington Supreme Court has reyected Whren under its State Constitution.

State v. Ladson, 138 Wash. 2d 343, 357-58, 979 P.2d 833, 842 (1999). The Washington

Supreme Court further noted that it would not permit its citizens to sacrifice their nights

simply upon entering a car; 138 Wash. 2d at 358 n. 10, 979 P.2d at 842 n. 10:

We note if we were to depart from our holdings and allow pretextual traffic
stops, Washington citizens would lose their privacy every time they enter their
automobiles. The traffic code is sufficiently extensive in its regulation that “[w]he-
ther it be for failing to signal while changing lanes, driving with a headlight out, or
not giving ‘full time and attention’ to the operation of the vehicle, virtually the
entire driving population is in violation of some regulation as soon as they get in
their cars, or shortly thereafter.” Peter Shakow, Let He Who Never Has Turned
Withom Signaling Cast the First Stone: An Analysis of Whren v. United States, 24
Am. J. Crim. L. 627, 633 (1997) (footnote omitted). Thus, nearly every citizen
would be subject to a Jerry stop simply because he or she is in his or her car. But
we have repeatedly affirmed that Washingtonians retain their privacy while in the
automobile and we will do so today. See City of Seattle v. Mesiani, 110 Wash.2d
454, 456-57, 755 P.2d 775 (1988) (“From the earliest days of the automobile in this
state, this court has acknowledged the privacy interest of individuals and objects in
automobiles.”) (citing State v. Gibbons, 118 Wash. 171, 187, 203 P. 390 (1922)).

See also People v. Dickson, 180 Misc.2d 113, 117-18, 690 N.Y.S.2d 390, 393 (N.Y.
County 1998) (holding traffic stop pretextual and noting Whren; until New York Court of
Appeals applies Whren, existing state law on the intent of the officers must be followed:
“the Whren Court did not view its pronouncement as constituting a new federal standard”:

New York likely will not follow it).

This case reached a similar conclusion, and the judgment of the Arkan.as Supreme

Court is entitled to constitutional deference.

Ill. Summary Reversal Is Unwarranted Because of the Nature of the Issues; In-

stead, If the Court Grants Certiorari at All, it Shoutd-tnclude the Issues Pre-

sented by Respoudent.

16

As stated in his Statement of the Case, supra, at 1-2, respondent submits that this
case falls in between Whren v. United States and Atwater v. City of Lago Vista. Summary

=—=__
reversal is, therefore, completely unwarranted.

indeed, if the Court chooses to grant certiorari, it should include the Questions
Presented by respondent as well because they are all “fairly included” within the issues
presented by the State of Arkansas’s certiorari petition, and they are reasons to defend the
judgment of the Arkansas Supreme Court. S.Ct. Rule 14.1(a) & 15.2(b); Robineute v.

Ohio, 419 U.S. 33, 38 (1996) (citing Vance v. Terrazas, 444 U.S. 252, 248-59 n. 5 (1980)).

REASONS FOR GRANTING THE WRIT

L. A Pretextual, Warrantless Arrest for a Non-Jailable Traffic Violation Violates
the Fourth Amendment, So Certiorari Should Be Granted and this Case De-

cided in Light of Atwater v. City of Lago Vista.

Before Officer Taylor made the pretextual demand of Sullivan for proof of insurance
and registration, he had probable cause to charge him with speeding five miles an hour over
the limit, even though it is universally recognized that motorists are given a five to ten mile

per hour tolerance.'? Speeding five miles an hour over the speed limit, in Arkansas, is an

12. US. Dept. of Transportation, National Maximum Speed Limit— Fiscal Year 1993: Travel
Speeds, Enforcement Efforts, and Speed-Related Highway Safety Statistics table | (Oct. 1995),
H.R. Rep. No,. 171(1), 102d Cong., Ist Sess. 32 (1991), reprinted in 1992 US.C.C. & AN. 1526,
1558 (“the average motorist expects a 5 to 10 mile per hour tolerance by law enforcement person-
nel”).

Both were cited in the petitioners’ briefs in Atwater v. City of Lago Vista, No. 99-1408,

a

17

-

unspecified “violation,” under Ark. Code Ann. § 27-51-201,"" and as such is punishable by
at most a fine of $100.'* If a physical arrest could be made for this violation alone, then
Sullivan could have been removed from his vehicle at this point, and it could have been
inventoried, making any subsequent unconstitutional search moot. Noting that such a
practice would convey extraordinary discretion to officers in the field, the majority of the
Arkansas Supreme Court on rehearing ruled that this result would “fly in the face of
reasonableness, which is the essence of the Fourth Amendment. See State v. Holmes,
supra.” 340 Ark. at 318-C, 16 S.W.3d at 553.

Nevertheless, the three dissenting justices on the Arkansas Supreme Court not only
found Whren controlling, but also found that a custodial arrest was valid for any traffic

offense under Ark. R. Crim. P. 4.1(a)(iii) “which states that ‘a law enforcement officer may

Petitioner's Brief at 20-21 (Sept. 11, 2000), and Whren v. United States, No. 95-5841, Petitioner’s
Brief (Feb. 16, 1996).

13. Ark. Code Ann. § 27-51-201(a)(1) provides: “No person shall drive a vehicle on a
highway at a speed greater than is reasonable and prudent under the conditions and having regard to
the actual and potential hazards then existing.”

14. Ark. Code Ann. § 27-50-301 provides: “Any moving traffic law violation not enumer-
ated in § 27-50-302 shall be known as a violation as defined in Arkansas Criminal Code, §§ 5-1-105
and 5-1-108, and shall be punishable as provided under § 5-4-201.” None of the offenses respon-
dent were stopped for are listed in § 27-50-302, so they are punishable by fine only.

Section 5-4-201 lists only fines as punishments, and “violations,” unlike felonies and
misdemeanors, are not subject to any possible incarceration. See Ark. Code Ann. § 5-1-108,
defining violations.

(a) An offense is a violation if it is so designated by this code or by a statute not
a part of this code.

(b) Regardless of any designation appearing in the statute defining an offense, an
offense is a violation for purposes of this code if the statute defining the offense provides that
no sentence other than a fine, or fine or forfeiture, or civil penalty is authorized upon
conviction. ‘

arrest a person without a warrant if the officer has reasonable cause to believe that such a
person has committed .. . any violation of law in the officer’s presence.’ (Emphasis
added.)”'® 340 Ark. at 318-F, 16 S.W.3d at 554 (dissenting opinion).

This statement in the dissenting opinion is essentially the issue before his Court in
Atwater v. City of Lago Vista, No. 99-1408, supra. The State disclaims any reliance on
Atwater because respondent did not rely on the Rule 4. 1(a)(iii) issue below. (Pet. Cert. at
3-4, n. 1)

Since, however, the dissent discussed Rule 4.1(a)(iii) and said it was binding and
supported this arrest, then the majority below must have rejected that interpretation on
reasonableness grounds. Therefore, respondent submits that the constitutionality of Rule
4.1(a)(iii) must be fairly included within the Questions Presented and respondent will assert
that it is unconstitutional when applied to any traffic offense, the issue in Atwater v. City of
Lago Vista, supra, since the petitioner relies on Rule 4.1(a)(iii) and Whren.

The State simply cannot have it both ways. Either the Arkansas Supreme Court
impliedly held that Rule 4.1(a)(iii), if interpreted to permit a full custodial arrest for a
minor traffic offense, would be unreasonable and thus would violate the Fourth Amend-
ment, or it held that Arkansas’ own constitutional reasonableness requirement invalidated
the arrest and consequent inventory under Rule 16.2. The first alternative brings this case
squarely within the issue presented by Afwater—indeed in a way an even more egregious

version of the problem presented by Afwater-since this was a pretextual arrest, rather than

15. The full text of Ark. R. Crim. P. 4.1 is reproduced in the Appendix at 1-A.

19

a citation for a minor traffic offense, made just so the officer could look for drugs. The
second alternative, as respondent has argued, presents an adequate and independent, albeit
inartfully expressed, state ground for the judgment, and is thus a proper basis to deny the
State’s petition for certiorari.

A. Granting Unbridled Discretion to a Law Enforcement Officer to Make a
Custodial Arrest to Facilitate an Inventory Search is Unreasonable under
the Fourth Amendment.

This Court has always been leery of granting law enforcement officers unbridled
discretion. And, granted, much discretion is necessary for them to do their jobs. But, what
happens when absolute discretion colhdes with the “nght of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures”? This
Court usually comes down on the side of restraining discretion to protect the people. Here,
that discretion was used to effect an arrest to make a search of respondent's car.

1. The officer’s suppression hearing testimony as to his discretion

At the suppression hearing, the officer testified that he had the discretion to arrest
whomever he wanted for any traffic offense. (R. 57-58, 62-63) The State agrees, and it
cites Ark. R. Crim. P. 4.1(a)(iii) in support of this conclusion (Pet. Cert., at 3, n. 1), as did
the dissenters in the Arkansas Supreme Court below. 340 Ark. at 318-F, 16 S.W.3d at 554
(dissenting opinion).

2. The Fourth Amendment’s reasonableness inquiry

The first clause of the Fourth Amendment protects us against “unreasonable sear-

ches and seizures.” Reasonableness is the “fundamental inquiry” in Fourth Amendment

20

cases. See, e.g, Cady v. Dombrowski, 413 U.S. 433, 439 (1973), United States v.
Chadwick, 433 U.S. 1, 9 (1977); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). It has
also been called the “touchstone” of the Fourth Amendment. Robinette v. Ohio, 519 U.S.
33, 39 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citing Katz v. United
States, 389 U.S. 347, 360 (1967)) (reasonableness is “contextual and not subject to bright-
line rules”)); Whren, 517 U.S. at 813.

One aspect of the reasonableness is the necessity of checking or limiting the discre-
tion of government officers in the field.

3. This Court’s distrust of unbridled discretion in law enforcement
officers

This Court has always shown that it is leery of granting unbridled discretion in a law
enforcement officer to conduct seizures and then searches, no matter what the context.
In Delaware v. Prouse, 440 U.S. 648, 660 (1979), this Court held that random
vehicle seizure for driver’s license checks was unreasonable under the Fourth Amendment.
The Court held that stops, i.e., seizures of the vehicle and driver, could not be based on
“the unbridled discretion of law enforcement officials.” There has to be limits on the
exercise of this discretion. /d.:
When there is not probable cause to believe that a driver is violating any one of the
multitude of applicable traffic and equipment regulations—or other articulable basis
amounting to reasonable suspicion that the driver is unlicensed or his vehicle
unregistered—we cannot conceive of any legitimate basis upon which a patrolman
could decide that stopping a particular driver for a spot check would be more
productive than stopping any other driver. This kind of standardless and uncon-
strained discretion is the evil the Court has discerned when in previous cases it has
insisted that the discretion of the official in the field be circumscribed, at least to
some extent. Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973); Camara

21

v. Municipal Court, 387 U.S., at 532-533.

This Court just reaffirmed this language in City of Indianapolis v. Edmond, supra,
slip op. at 6, where it quoted from the last part of the above quote from Prouse that “The
officer’s conduct in that case was unconstitutional primarily on account of his exercise of
‘standardless and unconstrained discretion.’ 440 U.S. at 661.”

Likewise, in Mincey v. Arizona, 437 U.S. 385, 394-95 (1978), a police officer
shooting case where the State of Arizona argued for a murder scene exception to the
warrant requirement, this Court held that the lower court’s limits on the officer’s discretion
to conduct a murder scene search did not go far enough: “The confer unbridled discretion
upon the individual officer to interpret such terms as ‘reasonable .. . search’... .” The
Court held that those limits did nothing to protect against arbitrary searches and seizures,
and those judgments had to be made by a neutral and detached magistrate.” /d at 395.

Even in the area of administrative searches, this Court has been concemed with
grants of unbridled discretion of inspectors to enter property; Marshall v. Barlow's Inc.,
436 U.S. 307, 323 (1978) (quoted in Donovan v. Dewey, 452 U.S. 594, 599 (1980), and
followed in New York v. Burger, 482 U.S. 691, 703 (1987)); or order urine tests. Skinner v.

Railway Labor Executives’ Assn., 489 U.S. 602, 622 (1989) (regulations provided limits on
discretion and protected against abuse of discretion).
In United States v. Brignoni-Ponce, 422 U.S. 873, 882-83 (1975), the Court also

mentioned the “unlimited interference with the use of the highways” that roving patrol

stops created, and it followed in United States v. Martinez-Fuerte, 428 U.S. 543, 559

22

(1976), stating that Brignoni was based on fears that “[t}here was also a grave danger that
such unreviewable discretion would be abused by some officers in the field.”

“{S]tandardless and unconstrained discretion” is exactly what this case involves, and
the grant of this discretion by Rule 4. 1(a)(iii) and the unbridled exercise of this discretion
to conduct a pretextual arrest when a citation should do makes all the constitutional
difference.

This finding of pretext shows that this stop, arrest, and inventory search was “in the
end to advance ‘the general interest in crime control.’ Prouse, 440 U.S., at 659 n. 18. ...
We cannot sanction stops justified only by the generalized and ever-present possibility that
interrogation and inspection may reveal that any given motorist has committed some
crime.” City of Indianapolis v. Edmund, supra, slip op. at 11.

B. Whren, Atwater, and absolute discretion.

Whren v. United States does not deal with officer’s discretion. Indeed, the entire
premise of the Whren is that there was an objectively reasonable basis for a stop that lead
to a plain view of drugs in the hands of the occupants of the car when he walked up.
Atwater does deal with officer’s discretion: his discretion to make a custodial arrest for any
traffic offense he chooses. Here, we have an objectively reasonable basis for the stop, but
we have absolute discretion as to whether the respondent or any other citizen would be
subjected to a custodial arrest rather than a citation. In addition, the officer knew that the
custodial arrest permitted an inventory of the vehicle. (R. 63)

Thus, this case falls between Whren and Atwater, and it is not controlled by either.

23

Summary reversal on Whren, as the State requests, is improper.

C. Thus, Ark. R. Crim. P. 4.1(a)(iii) violates the Fourth Amendment.

Ark. R. Crim. P. 4.1(a)(iii) grants law enforcement officers unbridled discretion to
subject any motorist to a custodial arrest for any traffic offense. Respondent contends that
this unbridled discretion in a law enforcement officer violates reasonableness requirement
of the Fourth Amendment.

While the State disclaims any relevance of this issue to this case (Pet. Cert. at 3 n.
1), the facts remain that the State raised Rule 4.1(a)(iii) in support of its position below
(Appt’s Brief, No. CR99-1140, at 4), and the dissenters in the Arkansas Supreme Court
relied upon it in concluding that rehearing should be granted. (340 Ark. at 318-F, 16
S.W.3d at 554 (dissenting opinion)). Respondent submits, however, that the constitutional-
ity of Rule 4.1(a)(iii) is before the Court as “fairly included” within the Petition because it

may be used to defend the result below.

Il. The Court Has Previously Recognized in Dicta That a Vehicle Inventory May
Be Pretextual, and, If Certiorari Is Granted, the Court Should Hold Pretextual

Inventories Unreasonable.

A. The Court Has Repeatedly Suggested That a Vehicle Inventory Done
Merely as a Pretext to Generally Investigate Crime Might Violate the
Fourth Amendment.

In Colorado v. Bertine, 479 U.S. 367 (1987), the Court dealt with a vehicle inven-
tory after a DWI arrest. The Court stressed that “there was no showing that the police, who

were following standardized procedures, acted in bad faith of for the sole purpose of

24

investigation.” /d. at 372. At the end of the majority opinion, the Court concluded that
“{t]here was no showing that the police chose to impound Bertine’s van in order to investi-
gate suspected criminal activity.” /d. at 376.

Similarly, in the inventory case of Florida v. Wells, 495 U.S. 1, 4 (1995), the Court
stressed that the requirement of standardized procedures

is based on the principle that an inventory search must not be a ruse for a general

rummaging in order to discovery incriminating evidence. ... The individual police

officer must not be allowed so much latitude that inventory searches are turned into

a “purposeful and general means of discovering evidence of crime.” Bertine, supra,

at 376 (BLACKMUN, J., concurring).

In the administrative search case of New York v. Burger, supra, the Court sustained
the search there because the regulatory scheme protected against unchecked discretion.
The Court added one caveat, however, id. at 726 n. 27, “There is, furthermore, no reason to
believe that the instant inspection was actually a ‘pretext’ for obtaining evidence of respon-
dent’s violation of the penal laws. It is undisputed that the inspection was made solely
pursuant to the administrative scheme.”

Here, we have a finding of fact already sustained by the Arkansas Supreme Court
that brings the inventory of respondent’s vehicle squarely within the questions reserved in
Bertine and Wells. This is an important question, and it happens every day in this country.
Certiorari should thus be granted to resolve this important Fourth Amendment question.

B. The Trial Court’s Finding of Fact That the Arrest Occurred to Facilitate
the Inventory Is Entitled to Deference on Appeal and Certiorari.

The trial court found as a fact that the custodial arrest and search was pretextual, and

the Arkansas Supreme Court affirmed that finding in its original opinion. 340 Ark. 315,

25

318, 11 S.W.3d 526, 528 (2000). The decision on rehearing changed nothing on this score.
The finding of the trial judge, who has presumably seen this officer testify before, is
entitled to great weight. “[W]e hasten to point out that a reviewing court should take care
both to review findings of historical fact only for clear error and to give due weight to
inferences drawn from those facts by resident judges and local law enforcement officers.”
Ornelas v. United States, $17 U.S. 690, 699 (1996) (decided two weeks before Whren),

The trial court found the search unreasonable because the arrest was unreasonable to
facilitate an inventory, and the Arkansas Supreme Court said that was not against the
preponderance of the evidence. 340 Ark. at 318, 11 S.W.3d at 528.

The facts as found by the trial court align this case more closely with Atwater than
Whren. The officer used his discretion to make a pretextual custodial arrest. If respondent
had only been cited by this drug interdiction officer, the officer would not have been able
to conduct a search incident. Knowles v. lowa, 525 U.S. 113 (1998). With a custodial
arrest, however, the entire passenger compartment could have been searched under New
York v. Belton, 453 U.S. 454 (1981), or the officer could tow the vehicle and inventory it
under the Conway Police Department's inventory policy, Florida v. Wells, supra, rather
than just pull it aside on the convenience store lot, even though respondent would have
been released on a citation in short order after fingerprinting. '*

Here, that is exactly what happened.

16. Respondent recognizes that this Court has said that the “the existence of alternative ‘less
intrusive measures’ is not required in the reasonableness inquiry, //linois v. Lafayette, 462 U.S
640, 647 (1983), Bertine, 479 U.S. at 375-76; but it should still weigh heavily when pretext has
already been found by the trial court and the appellate court below.

~

26

CONCLUSION

The Arkansas Supreme Court decided that probable cause for the misdemeanor
weapons charge was not made out in this case, in part because it concluded-as had the mal
court-that this charge had been added merely as a pretext to inventory the vehicle. It made
this determination based upon an application to the facts of state law, expressed in its state
rules of criminal procedure and a state court decision. This is a wholly adequate and
utterly independent state law ground for the decision, notwithstanding the State's effort to
shoehorn into the matter a federal constitutional case at the eleventh hour.

Moreover, there is a significant factual difference between the facts of this case and
Whren, and the highest court of another state is in accord with Arkansas on similar facts.
Therefore, certiorari should be denied.

If certiorari is granted, it should be to determine whether the facts of this case
require a different result under Atwater or because the vehicle inventory in this case was
pretextual under Bertine and Wells.

Respectfully submitted,
JOHN WESLEY HALL, JR.*
523 West Third Street

Little Rock, Arkansas 72201
(501) 371-9131
DAVID M. SIEGEL

New England School of Law
154 Stuart Street

Boston, Massachusetts 02116

(617) 422-7270

Attorneys for Respondent
*Counsel of Record

27

APPENDIX

Arkansas Rules of Criminal Procedure Relied Upon

RULE 4.1. Authority to Arrest Without Warrant.

(a) A law enforcement officer may arrest a person without a warrant if the officer
has reasonable cause to believe that such person has committed
(1) a felony;
(i) a traffic offense involving
(A) death or physical injury to a person, or

= (B) damage to property, or

(C) driving a vehicle while under the influence of any intoxicating
liquor or drug;

(i) any violation of law in the officer’s presence;

(1v) acts which constitute a crime under the laws of this state and which
constitute domestic abuse as defined by law against a family or household member
and which occurred within four (4) hours preceding the arrest.

(b) A private person may make an arrest where he has reasonable grounds for
believing that the person arrested has committed a felony.

(c) Am arrest shall not be deemed to have been made on insufficient cause
hereunder solely on the ground that the officer or private citizen is unable to determine the
particular offense which may have been committed.

(d) A warrantless arrest by an officer not personally possessed of information
sufficient to constitute reasonable cause is valid where the arresting officer is instructed to
make the arrest by a police agency which collectively possesses knowledge sufficient to
constitute reasonable cause.

RULE 16.2. Motions to Suppress Evidence.

(a) Objection to the use of any evidence, on the grounds that it was illegally
obtained, shall be made by a motion to suppress evidence. The phrase “objection to the use
of any evidence, on the grounds that it was illegally obtained,” shall include but is not
limited to evidence which:

1. Consists of tangible property obtained by means of an unlawful search
and seizure; or

2. Consists of a record of potential testimony reciting or describing
declarations or conversations overheard or recorded by means of eavesdropping; or

3. Consists of a record or potential testimony reciting or describing a
confession or admission of a defendant involuntarily made; or

1-A

4 Was obtained as a result of other evidence obtained in a manner
described in subdivisions one, two, and three; or
5. Consists of the prospective in-court identification of the defendant
based on an unlawful pre-trial confrontation.
The motion shall be made to the court which is to conduct the trial at which such evidence
may be offered in evidence.

(b) The motion to suppress shall be timely filed but not later than ten (10) days
before the date set for the trial of the case, except that the court for good cause shown may
entertain a motion to suppress at a later time.

(c) Renewal of a motion to suppress which has been denied may be allowed on
the ground of newly discovered evidence or as the interests of justice require.

(d) An order granting a motion to suppress prior to tnal shall be reviewable on
appeal pursuant to Rule 36.10.

(ec) Determination. A motion to suppress evidence shal! be granted only if the
court finds that the violation upon which it is based was substantial, or if otherwise
required by the Constitution of the United States or of this state. In determining whether a
violation is substangal the court shall consider all the circumstances, including:

(i) the importance of the particular interest violated;
(u) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;

. (1v) the extent to which privacy was invaded,

(v) the extent to which exclusion will tend to prevent violations of these
rules,

(vi) whether, but for the violation, such evidence would have been discov-
ered; and

(vu) the extent to which the violation prejudiced moving party’s ability to
support his motion, or to defend himself in the proceedings in which such evidence
is sought to be offered in evidence against him.

2-A

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0415%3A3. Public record. Not legal advice.