dissenting.
While I fully agree with the majority that Trooper Roark was delaying the completion of the traffic stop in order for the drug dog to arrive, I am convinced that our standard of review requires us to affirm; therefore, I respectfully dissent.
In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing the findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court’s findings. Mann v. State, 357 Ark. 159, 161 S.W.3d 826 (2004). We reverse only if the circuit court ruling is clearly against the preponderance of the evidence. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). Based upon my review of the evidence and giving the trial court’s decision the proper deference, I am compelled to conclude that the trial court could find reasonable suspicion for Trooper Roark to delay releasing the appellant. Our criminal rules define reasonable suspicion 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: a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” Ark. R.Crim. P 2.1 (emphasis added). In Laime, the supreme court held that whether there is reasonable suspicion depends on whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating that the person may be involved in 19criminal activity. Laime, 347 Ark. at 155, 60 S.W.3d at 464. Arkansas Code Annotated section 16-81-203 (Repl.2005) lists several factors to be considered in determining if an officer has grounds for reasonable suspicion, including:
1)The demeanor of the suspect;
2) The gait and manner of the suspect;
3) Any knowledge the officer may have of the suspect’s background or character;
4) Whether the suspect is carrying anything, and what he or she is carrying;
5) The manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors;
6) The time of the day or night the suspect is observed;
7) Any overheard conversation of the suspect;
8) The particular streets and areas involved;
9) Any information received from third persons,' whether they are known or unknown;
10) Whether the suspect is consorting with others, whose conduct is reasonably suspect;
11) The suspect’s proximity to known criminal conduct;
12) The incidence of crime in the immediate neighborhood;
13) The suspect’s apparent effort to conceal an article; and
14) The apparent effort of the suspect to avoid identification or confrontation by a law enforcement officer.
The trial court made no specific findings and simply denied the motion to suppress; therefore, we are left to speculate on the basis for his denial. We can infer that the trial court | infound reasonable suspicion for continued detention. Among the factors the court may have relied on is the knowledge the officer had of the suspect’s background. Trooper Roark had a previous encounter with appellant and her passenger, Christopher Smith, where the passenger was found in the same truck with marijuana seeds. Next, the time of day and place of encounter may be considered factors, as appellant was stopped at 11:00 p.m. on a state highway. Further, Trooper Roark had information about appellant from a third party, as he testified that he had received information from the Walnut Ridge Police Department that appellant was dealing drugs. In my view, these are facts or circumstances that rise to more than a bare suspicion.
With these factors in mind, Trooper Roark could detain appellant long enough to request the consent to search. Appellant clearly indicated at least once that she felt she was being harassed, but Trooper Roark testified that she consented to the search. The trial court credited this testimony in denying the motion to suppress. The validity of the consent is a factual question, and the trial court’s finding of fact will not be reversed unless it is shown to be clearly erroneous. Cain v. State, 2010 Ark. App. 30, 373 S.W.3d 392.
The majority relies on our language in Ayala v. State, 90 Ark. App. 13, 203 S.W.3d 659 (2005), which states that once the purpose of the traffic stop is completed and absent any reasonable suspicion it is the officer’s duty to return the paperwork, issue the citation or warning if necessary, and discontinue the detention. I was a member of the panel deciding that case, and I stand by that holding. The distinction between Ayala and the present case is that the trial court in the present case could find reasonable suspicion from the facts and 11¶ circumstances presented. Further, in Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007), our supreme court seems to place some weight on the fact that the officer had not returned appellant’s identification papers and had not given him a copy of the warning in determining whether the traffic stop was completed.
Finally, I note that the majority relies on Trooper Roark’s testimony that he did not have probable cause to search the vehicle. First of all, probable cause to search is not the standard for a detention; reasonable suspicion is the standard. Further, the fact that an officer’s testimony is contradictory about whether he had probable cause to arrest is not determinative of the issue. Efurd, v. State, 334 Ark. 596, 976 S.W.2d 928 (1998); State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997). The same should be true on the question of reasonable suspicion to detain.
Although this is a very close case, I am compelled to follow our standard of review; therefore, I dissent.
HENRY, J„ joins.