State v. Cherry

Cite as 2014 Ark. 194

SUPREME COURT OF ARKANSAS
No. CR-13-888

STATE OF ARKANSAS Opinion Delivered May 1, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60CR-13-667]
DWAYNE R. CHERRY
APPELLEE HONORABLE WENDELL LEE
GRIFFEN, JUDGE

APPEAL DISMISSED.

JOSEPHINE LINKER HART, Associate Justice

The State of Arkansas appeals from a Pulaski County Circuit Court order granting

Dwayne R. Cherry’s motion to suppress contraband discovered on his person after a traffic

stop. The circuit court found that the police lacked reasonable suspicion to conduct a

patdown search pursuant to Rule 3.4 of the Arkansas Rules of Criminal Procedure and that

Cherry did not consent to the search of the interior of his clothing. On appeal, the State

argues that the circuit court erred as a matter of law by concluding that consent does not

satisfy the Fourth Amendment and, consequently, adding reasonable suspicion as a

prerequisite to a valid consent to search under Arkansas Rule of Criminal Procedure 11.1.

Because this is not a proper State appeal, we dismiss.

After he was charged with possession of a controlled substance (methamphetamine),

possession of drug paraphernalia, and theft by receiving, Cherry filed a motion to suppress

that challenged the reasonableness of his traffic stop under Rule 3.1 of the Arkansas Rules
 Cite as 2014 Ark. 194

of Criminal Procedure. Further, he asserted the necessity of a “pretext inquiry” to

determine whether his stop and arrest was the result of “an ulterior investigative motive.”

The State responded that Cherry was lawfully searched pursuant to his consent.

At the suppression hearing, Detective Jacob Pasmen of the Little Rock Police

Department testified that he was working as a patrol officer on the night of December 14,

2013, when he made contact with Cherry at 11:23 p.m. on Kavanaugh Boulevard just north

of Markham Street. While exiting the parking lot of a bike shop, he observed Cherry and

his wife Patricia pass him driving mopeds. A week or two before that evening’s encounter,

Pasmen had spoken to Cherry about the need to license his moped. When Cherry and his

wife passed him, Pasmen noted that neither bike had a license.

According to Pasmen, when he approached Cherry, Cherry seemed to be “a little bit

more nervous than normal.” Pasmen asked Cherry if he was carrying any weapons. Pasmen

claimed that, when Cherry stated that he was not, he asked Cherry for permission to “pat

him down” for officer safety. Pasmen asserted that, during the patdown, he obtained from

Cherry “verbal consent” to check the interior of his pockets for contraband. When Pasmen

checked Cherry’s pockets, he discovered a black purse that contained a couple of bags of

methamphetamine. Cherry subsequently told Pasmen that he was nervous because he had

an outstanding warrant for violation of his parole. When Pasmen ran the vehicle

identification numbers on the mopeds, he learned that both vehicles had been reported

stolen.

On cross-examination, Pasmen stated that he stopped Cherry because he believed that

2
 Cite as 2014 Ark. 194

the moped was not registered. He clarified that he had more than one prior encounter with

Cherry because of altercations that Cherry and his wife had with Summer Brewer and the

man that Brewer was dating. According to Pasmen, he felt the need to pat Cherry down

because of the “change in his persona.” Previously, he had found Cherry to be a “very calm,

well-spoken individual.” On this night, Cherry was “more anxious.” Pasmen admitted that

Cherry did not threaten him, but made him “nervous enough” that he felt the need to check

him for weapons. Pasmen further admitted that he did not feel a weapon when he was

patting Cherry down, but asked for, and received from Cherry, verbal consent to check his

pockets. Pasmen noted that, in addition to himself, two other officers, Baker and Smith

were involved with the stop.

Officer Joseph Smith testified that he was Pasmen’s back-up officer the night of

Cherry’s arrest. The officers were patrolling in separate vehicles. Smith stated that the Little

Rock police “always tried to make sure we had two officers with each other [because] it’s

kind of dangerous.” Smith asserted that, after the stop had been made, he talked to Cherry’s

wife, while Pasmen dealt with Cherry. Smith recalled that Pasmen asked Cherry for consent

to a patdown. During the pat-down, a small black purse was discovered, containing what

they believed was methamphetamine. Smith recalled that Cherry was acting “extremely

nervous.” Cherry kept walking around and “couldn’t stand still, almost like he wanted to

leave the area.” When Cherry was asked why he was so nervous, Cherry admitted to having

an outstanding warrant. According to Smith, that was initially how the police found out

about the warrant.

3
 Cite as 2014 Ark. 194

In its written order, the circuit court recited that Cherry, “under suspicion of

violating law” was “subjected to a ‘pat down’ search pursuant to Rule 3.4 of the Arkansas

Rules of Criminal Procedure.”1 The circuit court found that the evidence did “not indicate

that the officers who detained [Cherry] reasonably suspected that [Cherry] was armed and

presently dangerous to the officers or others.” Accordingly, the circuit court concluded that

the “predicate ground for a ‘pat down’ search under Rule 3.4 had not been established.”

The circuit court further found that Cherry “did not grant consent to an interior search,”

and “Rule 3.4 does not authorize a search of the interior of the clothing, if there is no basis

for believing, from the ‘pat-down’ search, that there is ‘any weapon or other dangerous thing

1
Strictly speaking, the situation that this appeal concerns is not an investigatory stop as
contemplated by Rule 3.1 of the Arkansas Rules of Criminal Procedure. Rule 3.1 states:

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
of forcible injury to persons or of appropriation of or damage to property, if such
action is reasonably necessary either to obtain or verify the identification of the person
or to determine the lawfulness of his conduct. An officer acting under this rule may
require the person to remain in or near such place in the officer’s presence for a period
of not more than fifteen (15) minutes or for such time as is reasonable under the
circumstances. At the end of such period the person detained shall be released without
further restraint, or arrested and charged with an offense.

Rather, this case involved a stop for a traffic offense—operating an unregistered motor
vehicle—committed in the presence of a law enforcement officer. It is the very situation
contemplated by the Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330
(1977), when it held that a pat down for officer safety comported with the Fourth
Amendment so long as the officer has reason to believe the driver or passenger is armed and
dangerous.

4
 Cite as 2014 Ark. 194

which may be used against the officer or others.’” The circuit court stated, “An officer

cannot absolve himself of the obligation not to intrude into the person of an individual who

has been detained by using the pretext of officer safety for the purpose of engaging in what

amounts to a search for contraband.” The circuit court concluded its order by stating, “To

say that the defendant consented to what amounts to a pretextual search is to allow the

consent exception to swallow the Fourth Amendment.”

On appeal, the State argues that the circuit court erred as a matter of law by

concluding that consent does not satisfy the Fourth Amendment and, consequently, adding

reasonable suspicion as a prerequisite to a valid consent to search under Arkansas Rule of

Criminal Procedure 11.1. The State asserts that Rule 11.1 allows a police officer to conduct

a search of an individual’s person without a search warrant or other color of authority if the

individual consents to the search.

Prior to examining the merits of any State appeal, we must first determine whether

it is a proper State appeal. State v. Tyson, 2012 Ark. 107, 388 S.W.3d 1. Arkansas Rule of

Appellate Procedure–Criminal 3(a)(1) provides that “[a]n interlocutory appeal on behalf of

the state may be taken only from a pretrial order in a felony prosecution which (1) grants a

motion under Ark. R. Crim. P. 16.2 to suppress seized evidence [.]” State v. Threadgill, 2011

Ark. 91, 382 S.W.3d 657 (citing Ark. R. App. P.–Crim. 3(a)(1) (2011)). The Rule further

states:

(d) The Supreme Court will not consider an appeal filed under either subsection
(a)(1) or (2) or subsection (b) of this rule unless the correct and uniform
administration of the criminal law requires review by the court.

5
 Cite as 2014 Ark. 194

Ark. R. App. P.–Crim. 3(d). While a criminal defendant has a constitutional right to appeal,

appeals in criminal matters brought by the State are authorized only by Rule 3 of the

Arkansas Rules of Appellate Procedure–Criminal. State v. Jones, 2012 Ark. 454. In addition,

we accept appeals by the State when our holding would be important to the correct and

uniform administration of the criminal law. Id.

Typically, this court decides appeals brought by the State in criminal cases only when

the issue is “narrow in scope” and involves the interpretation of law. Threadgill, 2011 Ark.

91, 382 S.W.3d 657. We do not permit state appeals merely to demonstrate the fact that the

circuit court erred. Id. Accordingly, we dismiss those appeals that do not present an issue

of interpretation of the criminal rules with widespread ramifications, or those appeals where

the resolution of the issue turns on the facts unique to the case or involve a mixed question

of law and fact. Id. Additionally, when an appeal merely raises an issue of the application,

not interpretation, of a criminal rule or statutory provision, we deem it to not involve the

correct and uniform administration of the criminal law and thus not within the ambit of

permissible State appeals under Rule 3. Id.

Despite the State’s attempt at framing the issue here as one solely involving an error

of law, the issue is the voluntariness of a consent to search, which is a question of fact. We

note that while both Pasmen and Smith testified that Cherry had consented to the patdown,

only Pasmen claimed that Cherry had also consented to a search of his pockets. This

important difference in the testimony of the two police officers does not support the State’s

assertion that there was no dispute regarding whether Cherry consented to the search of the

6
 Cite as 2014 Ark. 194

interior of his pockets. Moreover, the circuit court was not required to believe Pasmen’s

testimony. In suppression cases, we have said that “it is the circuit court that will be the

ultimate arbiter of credibility.” Jackson v. State, 2013 Ark. 201, ___ S.W.3d ___.

Accordingly, inasmuch as the circuit court’s written order states that Cherry “did not grant

consent to an interior search,” we interpret this sentence to be a finding of historical fact.

In the same paragraph of the order containing the finding that Cherry did not consent

to an interior search of his pockets, the circuit court goes on to make an additional finding

that Pasmen reported nothing that he felt in the patdown indicated that there was “any

weapon or other dangerous thing which may be used against the officer or others.”

Accordingly, an alternative basis for justifying the interior pocket search was foreclosed.

As this appeal involves only disputed factual findings, we hold that it is not a proper

State appeal.

Appeal dismissed.

William R. Simpson, Jr., Public Defender, Deputy Public Defender, by: Clint Miller,

for appellant.

Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.

7