dissenting. I would reach the merits of this appeal and reverse and remand because the trial court erred in refusing to suppress the marijuana found in this illegal search. The majority has dismissed this appeal because they believe that Tracy Simmons has failed to strictly comply with the rule governing conditional guilty pleas, Ark. R. Crim. P. 24.3.1 They impose this draconian penalty simply because Simmons’s attorney and the prosecutor used a preprinted form, not specifically designed for memorializing a defendant’s conditional plea, and entered hand-written notations to indicate that the plea was conditional. The majority also suggests that the prosecutor may not have known about or agreed to the conditional plea until after the fact. Be that as it may, Simmons’s abstract, although sketchy on this point, does reflect that a conditional plea was timely entered, and the record bears this out. We should address the merits of this case2.
At Simmons’s suppression hearing, Stuttgart police officer Joe Griffin testified that on the evening in question he observed Simmons sitting alone in a vehicle that was parked on the wrong side of the street outside the Sugartown Lounge. Simmons was talking to a pedestrian, who quickly left and entered the Lounge as Griffin approached. On prompting by the State, Griffin stated that he was “aware” of Simmons.3 According to Griffin, after the individual ran off, Simmons drove from the scene “in a very fast manner,” pulling out into oncoming traffic, not stopping at a stop sign, “driving very reckless and very fast.” Griffin claimed that at the time, he knew that Simmons was driving on a suspended Texas driver’s license and that he had previously issued Simmons a citation for it. According to Griffin, he turned on his blue fights and siren, but Simmons refused to pull over. Simmons again went through a stop sign and then stopped at the Corner Inn Caf and attempted to go inside. Griffin stopped Simmons and brought him back to his vehicle.
According to Griffin, at that time, he had not yet placed Simmons under arrest, but proceeded to run his license, “to make sure it was, uh, still suspended.” When Griffin received verification that the license was still suspended, he placed Simmons under arrest, according to the “policy” of the Stuttgart Police Department. Before taking him back to the patrol car, Griffin patted down Simmons and discovered several small bags of “suspected marijuana” in the pocket of Simmons’s blue jeans. When he performed an “inventory search” for the wrecker service, Griffin found a larger bag of marijuana and several “blunts.” At the detention facility, another small bag of marijuana was found in Simmons’s t-shirt pocket.
On cross-examination, Griffin admitted that he had only seven months’ experience at the time of the arrest, and was aware that he was operating in a high-drug-trafficking area. He also admitted that he did not see Simmons’s face when he approached his vehicle, however, he was “absolutely sure” who it was because Simmons “is a large gentleman, with a large profile,” and he was “aware” of Simmons’s vehicle. However, it was brought out that despite the confidence he expressed in his trial testimony, Officer Griffin’s report stated that when he approached Simmons’s vehicle, he knew it to be occupied by an “unknown black male.” When asked about discrepancies between his hearing testimony and his report, Griffin admitted that some of what was in the report was incorrect, but “not all of it.” Griffin admitted that he did not record in his report the fact that Simmons’s license was revoked or that Simmons was under arrest when he performed the pat-down search. Griffin also insisted that even though his report stated that he noticed a bulge in Simmons’s hip pocket when Simmons was reaching for his license in his back pocket and subsequently performed a Terry frisk, Simmons was under arrest before he searched him. Griffin admitted that Simmons was very cooperative in surrendering his license and was not combative at any time and that he noticed nothing that would make him believe that Simmons was armed. He also admitted that during his pat-down of the bulge, he felt it to be “soft in nature,” and admitted that a weapon would not be soft.
The trial judge denied Simmons’s suppression motion, stating:
I will deny the Motion to Suppress. This Dickerson case is distinguishable. It says that it was discovered only after squeezing, sliding, and otherwise manipulating the contents of the pocket and it was a pocket that the officer already knew did not contain a weapon. It does not sound like it would fit here. Thank y’all.
Simmons argues that Officer Griffin lacked reasonable suspicion to stop his vehicle. He contends that as Officer Griffin approached, he did not have reasonable suspicion of criminal activity, as required by Rule 3.1 of the Arkansas Rules of Criminal Procedure. He challenges Griffin’s trial testimony about recognizing Simmons, both because the officer never saw Simmons’s face and because Officer Griffin’s report stated that he was an “unknown black male.” He further argues that Officer Griffin’s report does not mention any of the traffic offenses that Griffin testified about at trial. Citing Camp v. State, 26 Ark. App. 299, 764 S.W.2d 463 (1989), Simmons argues that a random stop of a driver violates the Fourth Amendment. This argument has merit.
When this court reviews a trial court’s denial of a motion to suppress, it makes an independent determination based on the totality of the circumstances, but will only reverse if the trial court’s decision was clearly against the preponderance of the evidence. Hill v. State, 64 Ark. App. 31, 977 S.W.2d 234 (1998). Rule 3.1 of the Arkansas Rules of Criminal Procedure 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.
A “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.
First, while Officer Griffin may well not have had reasonable suspicion when he first approached Simmons’s vehicle, if the officer’s trial testimony is to be believed, reasonable suspicion accrued when he recognized Simmons as a person whom he had recently cited for driving on a suspended driver’s license and when Simmons committed the various traffic offenses that he allegedly committed when he left the area. Of course it is possible that when Simmons saw Officer Griffin approach in a marked police car that had not yet activated its blue lights or siren, his technique for avoiding arrest was to drive away recklessly at a high rate of speed, sail through two stop signs, and attempt to go into a night club. However, if these traffic offenses were committed, Officer Griffin had reasonable suspicion to make the stop and arrest. A law-enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that the person has committed any violation of the law in the officer’s presence. Ark. R. Crim. P. 4.1 (a) (iii). The question therefore is simply whether Officer Griffin’s credibility is assailable on appeal.
It is so well settled as to be axiomatic that the credibility of the witness in this instance was for the trial court to weigh and assess. See, e.g., State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997). However, in Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989), the supreme court stated: “while we concede the trial judge is better able to assess credibility, we review the proceedings below independently of the trial court and base our conclusions on the totality of the circumstances.”
In this regard, Officer Griffin’s report stated that the subject he approached was “an unknown black male,” not someone he had cited for driving with a suspended license shordy before the encounter. The report also stated that he did a pat-down search prior to formal arrest, which conflicts with his hearing testimony. Moreover, the scope of the search as described by Officer Griffin, i.e., a pat-down of Simmons’s outer clothing is consistent with a Terry frisk, not a full search incident to arrest. The fact that more marijuana was found when Simmons was searched at the detention center further corroborates the cursory nature of the pat-down search. In this instance, the officer’s testimony in court was so diametrically opposed in every material part to two written reports prepared immediately following Simmons’s arrest as to lead to the inescapable conclusion that the trial testimony lacked credibility.
Simmons’s remaining arguments hinge on whether he was under arrest when Griffin patted him down. Simmons argues that under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, Officer Griffin was not justified in performing a Terry frisk because the officer did not articulate any basis for his belief that he was presently armed and dangerous. He contends that Griffin’s trial testimony was that Simmons was cooperative and not combative, and he did not observe anything that he believed to be a weapon. Simmons acknowledges that Officer Griffin testified that he noticed a “bulge” in Simmons’s pants pocket and that the bulge prompted the search; however, Griffin did not indicate that he suspected that the bulge was a weapon. Simmons also argues that even if Officer Griffin was justified in his performance of a Terry frisk, the scope of the search exceeded the permissible limits set forth in Terry and Minnesota v. Dickerson, 508 U.S. 366 (1993), because the purpose of the frisk is not to discover evidence, but to allow the officer to pursue the investigation without fear of violence. Simmons acknowledges that the “plain-feel” doctrine allows an officer to seize items that he readily identifies as contraband; however, Officer Griffin admitted that he was not able to identify the “bulge” as contraband until he removed it from the pocket.
The standard for justifying a Terry frisk is whether a reasonably prudent man in the circumstances would believe that his safety or the safety of others was in danger. Kearse v. State, 65 Ark. App. 144, 986 S.W.2d 423 (1999). However, Simmons either was, or was not, under arrest when Officer Griffin conducted the pat-down search, depending on which version of the events is correct. Officer Griffin’s trial testimony was that Simmons was already under arrest when he performed the pat-down. The rules in Terry simply do not apply to a search incident to arrest. See, e.g., Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). By the same token, if the seizure of the marijuana was conducted pursuant to a search incident to arrest, Terry and the plain-feel doctrine are also not implicated. However, Officer Griffin’s in-court testimony differs markedly from his written reports on this important factual matter, and Simmons’s arguments consequendy have merit. This case should be reversed.
I respectfully dissent.
HART, J., joins only with regard to whether the issue was preserved for appellate review.
This court has already denied the State’s motion to dismiss this appeal, on March 15, 2000, months prior to submission of the case. Rather than seek rehearing of our decision, the State attempted to have the supreme court review our denial of its motion, however the supreme court refused to do so. See Simmons v. State, 341 Ark. 251, 15 S.W.3d 344 (2000). In this instance our denial apparently does not bar the panel from addressing this jurisdictional issue on submission of the case, without regard to whether the State had unsuccessfully pursued an earlier motion to dismiss
We are required to put form over substance when determining whether there has been compliance with Rule 24.3(b). In Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996), the supreme court unequivocally stated this court cannot breathe life into a flawed appeal from a conditional guilty plea where no jurisdiction is vested. In a subsequent case, however, the supreme court did not preclude Tabor’s efforts to appeal the trial court’s denial of his motion to suppress. In Tabor v. State, 333 Ark. 429, 432, 971 S.W.2d 227, 229 (1998), the court stated: “Following this court’s dismissal of the appeal, Appellant successfully petitioned the trial court to withdraw his guilty pleas pursuant to A.R.Cr.P. Rule 26.1. He then entered a conditional plea to the same charges on January 10, 1997, this time reserving in writing his right to appeal the trial court’s ruling on his motion to suppress in compliance with Rule 24.3.”
Q. Did you — did you know Mr. Simmons?
A. [No verbal response.]
Q. Had you seen Mr. Simmons before?
A. Uh, yes, sir, I was aware of Mr. Simmons.