dissenting. I agree with the majority that there was substantial evidence to support Champlin’s convictions, and that Treat’s challenge to the sufficiency of the evidence is not preserved for review. I also agree that, had there been probable cause for the police to make the arrests, the appellants’ subsequent custodial statements would have been admissible based on Officer Miller’s testimony that he Mirandized appellants and they both gave voluntary statements. However, I would reverse and remand on the ground that appellants were illegally arrested, and thus that the trial court erred in denying appellants’ motion to suppress evidence.
The police officers’ stated reason for arresting appellants was for overpossession ofpseudoephedrine. Arkansas Code Annotated section 5-64-1101 (a) (Repl. 2005) provides that it is unlawful for any person to possess more than nine grams ofpseudoephedrine. In the present case, the police had information that Champlin possessed a legal quantity of pseudoephedrine, and that Treat possessed a legal quantity of pseudoephedrine, with the aggregate weight being 9.6 grams. Neither Champlin nor Treat was charged with overpossession of pseudoephedrine, and there was a lack of any probable cause that either of them had committed that offense. While the State argues that appellants were accomplices andjointly possessed an amount of pseudoephedrine that was over the legal limit, I cannot agree with that analysis. Under the facts known to the police, neither appellant could be imputed with joint possession of what was purchased by the other.
The majority asserts that the appellants’ conduct of splitting up and making three separate purchases within a relatively short time frame gave the police probable cause that they were committing a crime. In my view, this activity gave the police only a reasonable suspicion that the appellants were committing the crime of possession of pseudoephedrine with intent to manufacture methamphetamine. Rule 3.1 of the Arkansas Rules of Criminal Procedure permits an officer to stop and detain a person for further investigation if he reasonably suspects that the person has committed a felony. Pursuant to this rule the police were authorized in this case to stop appellants to verify their identification and to determine the lawfulness of their conduct. However, I cannot agree that these circumstances, for which there might have been a reasonable and innocent explanation, rose to the level of the probable cause necessary under Rule 4.1(a) to make a warrantless arrest.
The “fruit of the poisonous tree” doctrine provides that evidence obtained by the exploitation of a primary illegality must be excluded. See Wong Sun v. United States, 371 U.S. 471 (1963). I would hold that the inculpatory evidence obtained as a result of the appellants’ unlawful arrest should have been excluded. Therefore, I respectfully dissent.
Griffen, J., joins in this dissent.