dissenting. We granted this appeal by the State because it raises the issue of whether a police officer may conduct a warrantless search of a vehicle following a traffic violation by the driver. I disagree with the majority that such a search is authorized under these facts because (1) no custodial arrest for a traffic violation occurred prior to the search, and (2) the police officer’s safety was not at issue as evidenced by the fact that the police officer did not pat down Hezile Earl after he got out of his car. I would affirm the trial court’s decision to suppress the evidence.
The facts are that at about 3:00 a.m. on August 16, 1996, Des Arc Police Officer Chris Ralston stopped Hezile Earl, Jr., in his pickup truck for running a stop sign. Officer Ralston knew Earl and had stopped him twice before for traffic violations on different dates but had not searched his truck. He stated Earl was always “belligerent” when he was stopped by police officers and described him as a “racist.” (Officer Ralston is white. Earl is black.)
On August 16, 1996, prior to the stop, Officer Ralston was following Earl’s pickup truck and another vehicle with his lights off and saw him run a stop sign. The police officer stopped Earl’s truck and described what happened next:
When I stopped Mr. Earl, he pretty much immediately got out of his own vehicle, started toward me. I radioed for backup since I work alone. I got out and met Mr. Earl. Mr. Earl was mouthy. He was wanting to know why I stopped him. He was taking an offensive posture. I tried to explain why I stopped him. He was very belligerent. He was acting nervous. I have had two previous traffic stops with Mr. Earl and [I am] very familiar with Mr. Earl, and something was peculiar, he was acting very peculiar.
Officer Ralston then said Earl’s mood changed, and he picked up a soccer ball:
He [Earl] said “look at the soccer ball, it’s for my daughter.” And just his, he was trying to keep me from going to the front. When I would start going toward the cab of his truck, he kept trying to get me to stay away from his cab, which is something I hit on.
Officer Ralston stated that Earl would not “stay put,” and he was asked why he did not handcuff him. His response was:
Because at that time he only had run a stop sign. I normally don’t place them under arrest and put them in cuffs for running a stop sign.
Officer Ralston further admitted that he had not patted Earl down at this point and that this was “a mistake” on his part.
The police officer had Earl stand at the back of the truck, and he went to the cab of the truck, opened the door, reached under the seat in search for weapons, and while doing so saw a prescription bottle in a “cubby space” of the dashboard. He opened the bottle and assessed the contents as either crack cocaine or methamphetamine. According to Officer Ralston, at that time he placed Earl “under arrest” for possession of a controlled substance. He also prepared a traffic citation for running the stop sign, which Earl refused to sign.
The fallacy in the majority opinion is that Officer Ralston did not make an arrest until after he found the prescription bottle. He admits that. The majority, however, erroneously relies on custodial arrest decisions by the United States Supreme Court to bolster its conclusion that a mere traffic citation authorizes the underlying search. See, e.g., New York v. Belton, 453 U.S. 454 (1981); United States v. Robinson, 414 U.S. 218 (1973). These cases do not authorize carte blanche searches absent a custodial arrest. In United States v. Robinson, supra, the Court’s decision regarding searches incident to arrest was premised on the fact that the officer had probable cause to arrest the defendant and had effected a full-custody arrest. The Court held:
A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but it is also a “reasonable” search under that Amendment.
Robinson, 414 U.S. at 235 (emphasis added). There was no custodial arrest for a traffic violation in the instant case. Furthermore, the Court in Robinson expressly decided not to address the issue of whether the same rule applied for “routine” traffic stops where the police officer intended to issue only a traffic citation.
To the same effect is New York v. Belton, 453 U.S. 454 (1981). In Belton, the Court expanded Robinson’s search-incident-to-a-custodial-arrest rule to include the passenger compartment of a vehicle as well as to those containers located within that area. Our court has followed this principle announced in Belton. See Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). But a custodial arrest was still the threshold requirement. Stated simply, the instant case manifestly does not involve a custodial arrest that would support this search.
Whren v. United States, 517 U.S. 806 (1996), is also relied on by the majority but it, too, is inapposite to the instant case. Whren concerned whether a police officer’s stop of a vehicle, where he was able to see two plastic bags of crack cocaine in the passenger’s hands at the time of the stop, was an unreasonable search under the Fourth Amendment. The Court rejected the petitioners’ contention that the police officer’s traffic-violation justification for the stop, which occurred in a “high drug area,” was an unconstitutional pretext when the police officer lacked probable cause to believe they were involved in illegal drug-dealing activity. Rather, the Court held that a temporary detention was reasonable due to the existence of probable cause to believe a traffic violation had occurred. The stop, coupled with the crack cocaine in the passenger’s hands in plain view of the police officer, was sufficient to warrant seizure of the cocaine. Those facts clearly differ from the instant case where the police officer commenced a vehicular search, after the driver was out of the car, and did so based on mere suspicion that Earl was hiding something. In fact, Officer Ralston testified that he was looking for a weapon. The Whren case is simply not controlling.
The majority relies on Ark. R. Crim. P. 5.5 which reads:
The issuance of a citation in lieu of arrest or continued custody does not affect the authority of a law enforcement officer to conduct an otherwise lawful search or any other investigative procedure incident to an arrest.
It further relies on Ark. R. Crim. P. 4.1(a) which reads in part:
(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
(i) a felony;
(ii) 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;
(iii) any violation of law in the officer’s presence [.]
Our Rule 5.5 was adopted in 1976 pursuant to an American Bar Association recommendation. See American Bar Association, Standards Relating to Pretrial Release § 1.4 (Approved Draft, 1968). The ABA, however, reversed itself in 1986. After substantially revising the standard from which our Rule 5.5 was derived, the ABA issued this commentary:
The original standard read: “Nothing in these standards should be construed to affect a law enforcement officer’s authority to conduct an otherwise lawful search even though a citation is issued.” This language has been changed because, as originally drafted, the standard could be interpreted as authorizing a search incident to an arrest even though the officer does not place the accused under arrest but instead issues a citation. While the fourth amendment permits searches incident to even those arrests that need not result in a trip to the stationhouse, there must in fact be an arrest in order to justify a search incident to it. Thus, a police officer who decides ab initio to issue a citation cannot justify a search of the accused on the ground that the officer could have arrested the accused but did not.
2 American Bar Association, Standards for Criminal Justice 10.33 (2d ed. Supp. 1986)(citations omitted).
Here Officer Ralston testified that he had not arrested Earl for the traffic violation prior to the search, and after the search, he did not arrest him for the traffic violation. Earl’s arrest was due to possession of a controlled substance. And based on the police officer’s rendition of events, a traffic ticket had not been issued before the search commenced though one was issued apparently after the arrest for drug possession. Rule 5.5 is constitutionally infirm in my judgment in that the Robinson-Belton line of cases required a custodial arrest for a traffic violation prefatory to a search.1 Clearly, this court has simply failed to repeal a rule that is unconstitutional and, as with statutes, we should not give Rule 5.5 an interpretation so absurd as to provide carte blanche authority for all searches incident to traffic citations even when officer safety is not at issue. See, e.g., Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994); Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993). That, however, will be the effect of today’s decision.
With regard to Rule 4.1(a), it is obvious that the rule emphasizes arrests for traffic violations in certain limited circumstances. But it does permit warrantless arrests when a police officer observes “any violation of law in the officer’s presence.” Ark. R. Crim P. 4.1 (a)(iii)- Again, no arrest was made for running the stop sign. It was only after Officer Ralston found the prescription bottle and opened it that an arrest was made, and that arrest was for possession of a controlled substance.
Absent a traffic-related arrest or reasonable cause to believe another crime has been committed, searches must be limited to officer-safety searches under Terry v. Ohio, supra. This is clearly the law in the majority of jurisdictions. See, e.g., United States v. Evans, 994 F.2d 317 (7th Cir. 1993)(upholding the search of a vehicle based on furtive movements as well as the defendant’s decision to park in front of a house known to be involved in drug trafficking), cert. denied, 510 U.S. 927 (1993); United States v. Richards, 967 F.2d 1189 (8th Cir. 1992) (upholding the search of the passenger compartment of a motor home when the defendant, who was a released felon, was nervous and when officers saw .22 caliber rifle cartridges on the floor); People v. Innis, 604 N.E.2d 389, 392 (Ill. App. 4 Dist. 1992) (“[T]here may be justification to search a vehicle stopped for a minor traffic offense, if there is a ‘reasonable and articulable suspicion’ the defendant is armed and dangerous.”), citing Terry v. Ohio, 392 U.S. 1 (1968); Sanders v. State, 576 N.E.2d 1328 (Ind. App. 1 Dist. 1991)(requiring suppression of marijuana discovered in defendant’s automobile when the officers did not reasonably believe that the defendant, who was stopped for making two right turns without using a signal, placed them in danger).
Certainly, the safety of police officers while conducting traffic stops is a paramount consideration that has been recognized by this court. See, e.g., Shaver v. State, 332 Ark. 13, 963 S.W.2d 598 (1998); Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997), reh’g denied, 327 Ark. 576-A, 940 S.W.2d 440 (1997). However, in this case, the search was conducted not for Officer Ralston’s safety, but based solely on Earl’s “suspicious” conduct in distracting Officer Ralston from approaching the front of the truck. In fact, Officer Ralston was not concerned enough for his safety to pat Earl down before focusing his attention on the interior of the truck’s cab compartment. Had Officer Ralston’s safety been at issue, the majority’s decision would be correct. But such is not the case.
Both the Fourth Amendment to the U.S. Constitution and Article 2, § 15 of the Arkansas Constitution contemplate that a judge issue a search warrant for searches except in narrowly drawn instances. See, e.g., Shaver v. State, supra (officer safety); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997)(plain view); Hazelwood v. State, 328 Ark. 602, 945 S.W.2d 365 (1997) (search incident to arrest). Searches by a police officer incident to a citation for a routine traffic violation fall outside of these warrant-exception categories.
I would affirm the order of the trial court, and for that reason I respectfully dissent.
Newbern and Imber, JJ., join.I do acknowledge that the Supreme Court of Iowa has upheld a nearly identical statutory provision to our Rule 5.5 against constitutional attack in a 5-4 decision. However, the United States Supreme Court recendy granted a petition for writ of certiorari to the Iowa Supreme Court to review the case. See State v. Knowles, 569 N.W.2d 601 (Iowa 1997), cert. granted, 118 S. Ct. 1298 (1998).