King v. State

Cite as 2015 Ark. App. 84

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-642

Opinion Delivered February 11, 2015

JIMMY DALE KING APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[No. CR-2013-1633-1]

V. HONORABLE WILLIAM A. STOREY,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

Jimmy Dale King was convicted by a Washington County jury of possession of a

controlled substance, fleeing, and criminal mischief. On appeal, he argues that the trial court

erred in denying his motion to suppress evidence recovered from him upon his arrest, arguing

that (1) the investigatory stop was illegal because it was based on information provided by a

confidential informant who did not show a substantial indicia of reliability; (2) his unprovoked

flight did not establish grounds for arrest; and (3) his arrest was pretextual. We affirm.

At the motion-to-suppress hearing, Fayetteville Police Detective and Narcotics

Investigator Jacob Lawson, with the Fourth Judicial Drug Task Force, testified that on August

27, 2013, he received information from a confidential informant, who was being detained at

the police station. Lawson testified that the informant, who had been used by other detectives
 Cite as 2015 Ark. App. 84

in Lawson’s office,1 reported that large amounts of methamphetamine were being trafficked

by “Big Daddy,” from a residence on Green Point Trace. The informant described “Big

Daddy” as a black male, with a normal build, approximately 5'11" to 6' tall, weighing

approximately 180 pounds, and having closely shaven hair. She stated that she had purchased

methamphetamine from “Big Daddy” on multiple occasions.

At the police station around 9:00 p.m., the informant made a telephone call to “Big

Daddy,” which led to several calls back and forth between them in an effort to set up a

meeting place for a drug transaction. Lawson said that he recorded the first call and monitored

all of the calls. He said that the informant asked to purchase an ounce of methamphetamine

and that the drug seller designated the Value Place Inn parking lot, known for drug activity,

as the location for the transaction. The informant described “Big Daddy’s” vehicle as a silver

Lincoln Navigator with Texas license plates. The informant said that her vehicle was red.

Based on the information provided by the informant, Lawson requested that other police

officers set up surveillance at the Value Place Inn. Lawson further testified that after 11:00

p.m. that evening, King was arrested, and a plastic baggie of what was suspected to be a

controlled substance was confiscated from him. Lawson added that the evidence seized from

King was later submitted to the Arkansas Crime Laboratory, which confirmed that the

substance was nearly one ounce of methamphetamine.

1
Lawson stated that Detective Holland had previously used this confidential informant
and that Holland found her knowledge relating to drug activity to be credible.

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Fayetteville Police Detective Anthony Murphy testified that on the evening of August

27, 2013, he was asked to conduct surveillance on a silver Lincoln Navigator with Texas

license plates at a residence on Green Point Trace.2 While watching the subject vehicle,

Murphy was advised that the informant had just completed a phone call with the drug seller,

and within one minute, a black male matching the informant’s description left the residence,

entered the Navigator, and drove away. Murphy testified that he could see the vehicle pull

into the Value Place Inn.

Fayetteville Police Detective Gene Johnson, with the Fourth Judicial District Drug

Task Force, testified that he was conducting surveillance at the Value Place Inn on August 27,

2013, at Detective Lawson’s request. Johnson testified that he observed the silver Navigator

travel very slowly through the parking lot of the Value Place Inn. Johnson also saw a red

vehicle pull into the parking lot and approach the Navigator, at which time he observed the

Navigator pause for a minute. When the red car passed by, the Navigator continued through

the parking lot and headed back toward Green Point Trace.

Fayetteville Police Officer Tyler Moore testified that on August 27, 2013, he was on

patrol near the Value Place Inn in a marked police car and was asked to make contact with

a silver Navigator with Texas license plates that had just left the Value Place Inn and was

being driven by a black male as described by the informant. Moore said that he was advised

that the driver of the Navigator, whom Moore later identified as King, was suspected of

having methamphetamine in his possession for a drug transaction that was to have taken place

2
Green Point Trace is approximately a quarter of a mile from the Value Place Inn.

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at the Value Place Inn. Moore followed the Navigator as it pulled into a driveway on Green

Point Trace. Moore said that King looked back at him (Moore), jumped out of the vehicle,

and ran away. Moore’s emergency lights and siren were not on. He said that he barely had

time to put his car in park. He ran after King, ordered him to stop, but King did not comply.

Moore eventually grabbed King by the waist as he tried to scale a fence, damaging it. Another

officer helped Moore apprehend King, who continued to resist by kicking at the officers and

grabbing wood from the fence and throwing it at them. Once King was handcuffed, Moore

found a baggie containing a controlled substance in King’s possession.

Fayetteville Police Officer Tanner Jones testified that on August 27, 2013, he was

parked in his marked vehicle in the same location as Officer Moore. Officer Jones testified

that he was also ordered to make contact with a silver Navigator with Texas license plates that

had just left the Value Place Inn and was being driven by a black male as described by the

informant. Jones was further advised that the driver was suspected of drug trafficking. After

seeing the subject vehicle and driver, whom Jones later identified as King, Jones followed

Moore, who was following the Navigator, to Green Point Trace. Jones said that before he had

time to turn on his siren and emergency lights, he witnessed King pull into a driveway, look

back at the officers, jump out of his vehicle without shutting the vehicle door, and run. Jones

chased King and ordered him to stop, but he did not. Jones testified that he assisted Moore

in pulling King off the fence and placing him in handcuffs. When the officers returned to their

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vehicles with King, they saw what they suspected was a large baggie containing a controlled

substance in the waistband of his underwear.3

King’s arguments in support of his motion to suppress the methamphetamine were that

there was a lack of reasonable suspicion to effectuate an investigatory stop (focusing on the

lack of reliability of the confidential informant) and that an illegal pretextual stop had been

made. The trial court denied the motion, finding that the informant was reliable, that the

stop did not occur until the officers apprehended King from the fence, and that the officers

had reasonable suspicion based on the totality of the circumstances to believe that King had

committed a felony.

At trial, Officers Lawson, Moore, and Jones testified as they did in the suppression

hearing. No witness testified for the defense. The jury found King guilty of possession of a

controlled substance, fleeing, and criminal mischief. He was sentenced to fourteen years’

imprisonment and a fine of $8000 for possession of methamphetamine, along with a

concurrent term of nine months’ imprisonment in the county jail for the fleeing conviction

and a fine of $405 for the criminal-mischief conviction.

King’s appeal challenges the trial court’s denial of his suppression motion. Our standard

of review for a trial court’s decision to grant or deny a motion to suppress requires us to make

an independent determination based on the totality of the circumstances, to review findings

of historical facts for clear error, and to determine whether those facts give rise to reasonable

3
Both Moore and Jones testified that during the struggle with King, his shoes and shorts
came off.

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suspicion or probable cause, while giving due weight to inferences drawn by the trial court.

Moody v. State, 2014 Ark. App. 618, at 1–2, 446 S.W.3d 652, 653. We defer to the superiority

of the trial court to evaluate the credibility of witnesses who testify at a suppression hearing.

Id. at 2, 446 S.W.3d at 653. We reverse only if the trial court’s ruling is clearly against the

preponderance of the evidence. Id., 446 S.W.3d at 653.

King’s first argument is that the investigatory stop made by officers was illegal because

it was not based on reasonable suspicion as required under Arkansas Rule of Criminal

Procedure 3.1. More specifically, he contends reasonable suspicion was lacking because the

information provided by the informant did not show a substantial indicia of reliability.

However, we do not reach this argument because there was no investigatory stop in this case.

Before the officers could initiate an investigatory stop, King ran away from them. After

chasing him, the officers arrested him. Thus, the appropriate issue is whether there was

probable cause to support the officers’ warrantless arrest.

A law-enforcement officer may arrest a person without a warrant if the officer has

probable cause to believe that the person has committed a felony. Moody, 2014 Ark. App. 618,

at 4, 446 S.W.3d at 654; Ark. R. Crim. P. 4.1(a)(i) (2013). Probable cause to arrest is defined

as “a reasonable ground for suspicion supported by circumstances sufficiently strong in

themselves to warrant a cautious man in believing that a crime has been committed by the

person suspected.” Id., 446 S.W.3d at 654. Probable cause to arrest does not require the

quantum of proof necessary to support a conviction, and in assessing the existence of probable

cause, the appellate court’s review is liberal rather than strict. Id., 446 S.W.3d at 654. We look

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to the facts within the arresting officer’s knowledge—not his stated reasoning—to determine

whether those facts are sufficient to permit a person of reasonable caution to believe that an

offense has been committed. Id., 446 S.W.3d at 654. Moreover, probable cause to arrest

without a warrant may be evaluated on the basis of the collective information of the police.

Id., 446 S.W.3d at 654.

King’s warrantless arrest was supported by probable cause. The officers received

information from a confidential informant that implicated King in felonious criminal activity.

The informant reported that large amounts of methamphetamine were being trafficked from

a residence on Green Point Trace; that she, on multiple occasions, had purchased

methamphetamine from the person residing on Green Point Trace, whom she called “Big

Daddy”; she described him as a black male, normal build, standing between 5'11" to 6' tall,

weighing approximately 180 pounds, and having closely shaven hair; and she described his

vehicle as a silver Navigator with Texas license plates. Additionally, while in the presence of

Lawson, she called “Big Daddy” and set up a drug transaction that evening in the parking lot

of the Value Place Inn.

King calls into question the reliability of the informant because she was of the

“criminal milieu,” she did not provide “Big Daddy’s” name, any of his unique physical traits,

or a more detailed vehicle description. He also argues that there was insufficient testimony

about the number of times the informant had been used in prior criminal investigations and

the outcome of those investigations.

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Reliability of informants is determined by a totality-of-the-circumstances analysis that

is based on a three-factor approach adopted by the Arkansas Supreme Court in Frette v. City

of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998) (citing State v. Bybee, 884 P.2d 906 (Or.

Ct. App. 1994)).4 The factors are (1) whether the informant was exposed to possible criminal

or civil prosecution if the report is false; (2) whether the report is based on the personal

observations of the informant; and (3) whether the officer’s personal observations corroborated

the informant’s observations. Id. at 118, 959 S.W.2d at 741. The Frette court examined the

satisfaction of these factors:

The first factor is satisfied whenever [the informant] gives his or her name to
authorities or if the person gives the information to the authorities in person. With
regard to the second factor, “an officer may infer that the information is based on the
informant’s personal observation if the information contains sufficient detail that ‘it [is]
apparent that the informant had not been fabricating [the] report out of whole cloth
. . . [and] the report [is] of the sort which in common experience may be recognized
as having been obtained in a reliable way.’” The third and final element may be
satisfied if the officer observes the illegal activity or finds the person, the vehicle, and
the location as substantially described by the informant.

Id., 959 S.W.2d at 741 (alteration in original)(quoting Bybee, 884 P.2d at 908).

Applying the Frette factors to the instant case, the evidence shows that the confidential

informant was not an anonymous tipster. Although not named, she was identifiable, known,

and in the presence of Officer Lawson; therefore, she was subject to prosecution for making

a false report. There was evidence that another detective in Lawson’s office had previously

4
While the informant in Frette was a citizen and not a confidential informant of “the
criminal milieu,” we nevertheless apply the three-factor approach set forth in Frette. See
Weatherford v. State, 93 Ark. App. 30, 216 S.W.3d 150 (2005) (applying the Frette factors to
determine whether information provided by a confidential informant carried with it a sufficient
indicia of reliability).

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used the informant and found her to be credible in relating drug-trafficking information. The

information provided by the informant was based on her personal knowledge and observations

as she had had multiple prior dealings with King. The incriminating nature of the informant’s

information is itself a sufficient basis for finding it to be credible. Mock v. State, 20 Ark. App.

72, 78, 723 S.W.2d 844, 848 (1987). Significantly, the officers’ investigation and personal

knowledge corroborated the information that the informant provided. In fact, within one

minute of the informant hanging up with “Big Daddy,” King, who matched the physical

description given by the informant, left a residence at Green Point Trace; got into a silver

Navigator with Texas license plates; drove immediately to the Value Place Inn parking lot,

a known drug-transaction location; drove slowly through the lot; and paused when a vehicle

passed him that was the same color as the informant’s vehicle. Based on this evidence, we hold

that the trial court committed no error in finding the confidential informant reliable. See

Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000) (affirming the trial court’s denial

of a motion to suppress where the information from a known confidential informant about

drug trafficking in a location known for that type of activity was evidence of probable cause

sufficient to support the defendant’s arrest).

Finally, in addition to the confidential informant’s information and the officers’

corroboration of that information, King’s flight is further evidence supporting the existence

of probable cause. Flight to avoid arrest is admissible in corroboration of evidence tending to

establish guilt. Mock, 20 Ark. App. at 79, 723 S.W.2d at 848 (citing Mason v. State, 285 Ark.

479, 688 S.W.2d 299 (1985)). Our court in Mock further held that flight is likewise a

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circumstance to be considered in a determination of probable cause to support a warrantless

arrest. Id., 723 S.W.2d at 848. Therefore, we hold that probable cause existed to believe that

King had committed a felony. Accordingly, we hold that the officers’ warrantless arrest of

King was justified under Rule 4.1 and that the trial court did not err in denying the motion

to suppress evidence seized upon his arrest.

King’s second argument is that his unprovoked flight—alone— did not establish

grounds for arrest. However, this argument was not made below; therefore, it is not preserved

for appeal. Van Winkle v. State, 2014 Ark. App. 591, at 6, 445 S.W.3d 542, 547 (holding that

arguments not raised below are not preserved for appellate review) (citing Jackson v. State,

2014 Ark. App. 415; Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007)).5

King’s third and final argument is that his arrest was pretextual. State v. Sullivan, 348

Ark. 647, 655–56, 74 S.W.3d 215, 221 (2002) (holding that pretextual arrests—arrests that

would not have occurred but for an ulterior investigative motive—are unreasonable police

conduct warranting application of the exclusionary rule). King maintains that the officers

lacked probable cause to arrest him for possession of narcotics; therefore, they arrested him

on the lesser crimes of fleeing and criminal mischief. We reject this argument because where

there is probable cause to arrest for the greater, more serious offense, the need for a pretext

analysis is obviated. Sullivan, 348 Ark. at 655, 74 S.W.3d at 220; see also Romes v. State, 356

Ark. 26, 45, 144 S.W.3d 750, 762–63 (2004) (holding that where there was probable cause

to arrest without a warrant on aggravated-robbery and capital-murder charges, the need to

conduct a pretext-arrest analysis is obviated). Here, the officers had probable cause to arrest

5
To the extent that King contends that his flight from officers is not further evidence
to be considered in a probable-cause analysis, we disposed of that issue in his first point on
appeal.

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King for fleeing, criminal mischief, and possession of a controlled substance. Accordingly, we

affirm the trial court’s denial of King’s motion to suppress.

Affirmed.

WHITEAKER, J., agrees.

HOOFMAN, J., concurs.

CLIFF HOOFMAN, Judge, concurring. I concur with the result reached by the

majority. However, I write separately because I cannot agree with the majority’s assertion

that there was not an investigatory stop and that the “appropriate issue [before this court] is

whether there was probable cause to support the officers’ warrantless arrest” when this

argument was not presented to the trial court or argued by appellant on appeal. Furthermore,

the record does not reflect if or when appellant was arrested prior to being taken to jail.

Officers Jones and Moore testified at the hearing on appellant’s motion to suppress and at trial

that they had to pull appellant off a fence and restrain him in handcuffs, but neither officer

testified as to when appellant was formally arrested. Specifically, Officer Jones testified at trial

that after they pulled appellant off the fence and restrained his hands behind his back, “we

placed him in handcuffs and then waited for detectives, the narcotics detectives to come up

to us. Like I said, we were just assisting them to make contact with this individual.”

Additionally, the trial court specifically found that a stop occurred but that the stop did not

occur until the appellant was unable to scale a privacy fence and was apprehended by Officers

Moore and Jones. Therefore, while I agree that this case must be affirmed, I do so under a

different analysis based on appellant’s arguments raised on appeal.

At the motion-to-suppress hearing and at trial, appellant argued that the officers lacked

reasonable suspicion to effectuate an investigatory stop, specifically that the information

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provided by the informant did not show a substantial indicia of reliability, and that the

investigatory stop was pretextual. After hearing all evidence presented on these two issues, the

trial court orally denied appellant’s motion to suppress:

....

Now, with respect to the stop. There’s an argument that there was some sort
of pretext for the stop. Well, the stop clearly, clearly, did not occur until Officers
Moore and Jones saw the Defendant jump out of his vehicle, the silver Lincoln
Navigator SUV, and take off running. The stop did not occur until the Defendant,
as it turns out, was unable to scale a privacy fence and was apprehended by Officers
Moore and Jones. That’s clear from the proof. The issue then becomes was this stop
legitimate under the provisions of Rule 3.1 of the Arkansas Rules of Criminal
Procedure. Clearly, at that point given the information, that the police officers,
Officers Moore and Jones had, information which they had received from the DTF
officer or officers, plus the information they had received by way of radio traffic,
clearly, clearly in my judgment, had reasonable cause or reasonable suspicion that a
felony had been committed and therefore, the stop, after the Defendant jumps out of
his car and tries to flee, was proper and legitimate in all respects. So for those reasons
the Defendant’s motion is denied. Thank you.

(Emphasis added). Subsequently, at trial, when the State offered the drug evidence, appellant

renewed his objection.

[APPELLANT’S COUNSEL]: Your Honor, we object to the admission of State’s
Exhibit Number 5 under two particular grounds. We
renew all previous other motions as to the admission of
this evidence and ask the court to reconsider those and
then we’d like to specifically point out that we feel that
this stop was committed without probable cause,
specifically under the precedent set in the case of Fowler
v. State and we’d like -- we feel that this evidence is not
admissible for these reasons.

THE COURT: Well, of course, we’ve addressed that issue and I’ll
overrule the objection, admit State’s Exhibit 5, 6, and 7.

(Emphasis added).

On appeal, appellant solely contends that the trial court erred in denying the appellant’s

motion to suppress. Specifically, appellant argues that (1) the investigatory stop was illegal

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because it was based on information provided by a confidential informant who did not show

a substantial indicia of reliability, (2) his unprovoked flight did not establish grounds for arrest,

and (3) his arrest was pretextual. The State disagrees and argues that the second and third

arguments were not preserved for appeal.

Appellant first argues that the information provided by the confidential informant

lacked the sufficient indicia of reliability necessary to use such information as a basis of

reasonable suspicion in order for the officers to stop King. As support for his argument, he

cites to Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998), and this court’s

decision in Lambert v. State, 34 Ark. App. 227, 808 S.W.2d 788 (1991). Appellant alleges that

the three-factor test adopted in Frette was not met here because the confidential informant was

of “the criminal milieu,” the “informant’s basis of knowledge is prior transactions which could

not be confirmed, and too few details were provided or substantially corroborated by

officers.”

Arkansas Rule of Criminal Procedure 3.1 provides,

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.

“Reasonable suspicion” is defined 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.” Ark. R. Crim. P. 2.1. “The justification for the

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investigative stop depends upon whether, under the totality of the circumstances, the police

have specific, particularized, and articulable reasons indicating the person may be involved in

criminal activity.” Davis v. State, 351 Ark. 406, 415, 94 S.W.3d 892, 897 (2003). Therefore,

the facts articulated by the officer are not viewed in isolation, but are taken together. Id. In

determining whether an officer had reasonable suspicion, courts must recognize that, “when

used by trained law enforcement officers, objective facts, meaningless to the untrained, can

be combined with permissible deductions from such facts to form a legitimate basis for

suspicion of a particular person and for action on that suspicion.” James v. State, 2012 Ark.

App. 118, at 9, 390 S.W.3d 95, 100 (citing United States v. Cortez, 449 U.S. 411 (1981)).

After applying the Frette factors to the instant facts, I agree with the majority that the trial

court committed no error in finding the confidential informant reliable. See Frette, supra;

Weatherford v. State, 93 Ark. App. 30, 216 S.W.3d 150 (2005).

I also agree with the State that appellant’s next two arguments were not preserved for

appeal. An issue must be raised before the circuit court to be preserved for appellate review.

Eastin v. State, 370 Ark. 10, 257 S.W.3d 58 (2007). Furthermore, it is the appellant’s burden

to ensure that an argument is developed before the circuit court and to obtain a specific

ruling. Id. Here, the arguments made on appeal were not made before the trial court.

Instead, appellant only argued before the trial court that the officers lacked reasonable

suspicion to effectuate an investigatory stop and that the investigatory stop was pretextual.

He did not argue that appellant’s unprovoked flight was an insufficient basis for his arrest, nor

did he argue that the arrest itself was pretextual. Furthermore, a specific ruling regarding the

arrest was not obtained. Thus, I would affirm the trial court.

Peter E. Giardino, for appellant.

Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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