dissenting. The decision of the Trial Court to suppress the incriminating statement given by Albert Bell to the police on January 8, 1993, rested on two alternate findings. First, the Trial Court found that the police failed to apprise Mr. Bell on January 8 that he was under no legal obligation to accompany them to the police station, that the police did not have probable cause to arrest Mr. Bell on that date, and that suppression of the statement was therefore required under Ark. R. Crim. P. 2.3. Second, the Trial Court concluded that Mr. Bell did not knowingly and intelligently waive his constitutional rights prior to making his statement on January 8 and that suppression of the statement was also required under the Fifth and Sixth Amendments to the United States Constitution. The Trial Court’s decision to suppress Mr. Bell’s January 8 statement was correct under our cases that have interpreted Rule 2.3 and discussed the concept of probable cause.
The rule of criminal procedure at issue in this case is Ark. R. Crim. P. 2.3. The rule was adopted by a per curiam order of this Court on December 22, 1975, and made effective on January 1, 1976. See In the Matter of Rules of Criminal Procedure, 259 Ark. 863, 530 S.W.2d 672 (1975). The rule provides as follows:
Warning to Persons Asked to Appear at a Police Station.
If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.
Ark. R. Crim. P. 2.3.
As we have consistently held, most recently only two months ago, a police officer who requests a person to come to the police station has a “positive duty” under Rule 2.3 to express to the person verbally that he or she has no legal obligation to comply with the request. Martin v. State, 328 Ark. 420, 429, 944 S.W.2d 512, 517 (1997). The obvious reason for the requirement is the impossibility, absent such a verbalization requirement, of administering a rule which requires that the matter be “made clear” to the person requested to accompany an officer.
Our “bright-line rule” is that “a statement must be suppressed under Rule 2.3” if the police “simply fail to notify the person” that he or she does “not have to come to the station for questioning.” Id. However, if the police had probable cause to arrest the person at the time of the request, then suppression of the statement will not be required even if the police violate Rule 2.3. In that instance, the violation of Rule 2.3 is “excused.” Id.
As mentioned, the Trial Court found that suppression of Mr. Bell’s January 8 custodial statement was required under Rule 2.3. In reversing the Trial Court on this point, the majority appears to hedge on the initial question of whether the police in this case even violated Rule 2.3. But the majority concludes that, regardless of whether the rule was violated, it was error for the Trial Court to suppress Mr. Bell’s January 8 statement because the police had probable cause to arrest him at the time they requested him to come to the police station.
In light of its ruling on the probable-cause issue, the majority determines that it is “irrelevant” whether the police violated Rule 2.3. However, the majority seizes the “opportunity” in this case to announce that, “in the future,” the failure of the police to give a verbal warning will not be dispositive of the questions of “whether a seizure of the person has occurred under the Fourth Amendment and whether a statement to police officers must be suppressed.” Under the majority’s proposed rule, the courts would consider the police’s failure to give a verbal warning as merely one factor in determining whether the police have complied with Rule 2.3. The majority says that this approach is based upon “the constitutional rule laid down in United States v. Mendenhall, 446 U.S. 544 (1980).” It fashions its opinion as a “retreat” from the numerous cases that imposed the verbal-warning requirement on police officers under Rule 2.3.
The majority’s analysis of Rule 2.3 is, in my view, supported by neither the law nor the facts in this case.
1. The verbal-warning requirement
The proposal to abolish the “positive duty” we have imposed on the police under Rule 2.3 is improper on procedural and substantive grounds. First, the majority opinion, by its own analysis, makes its announcement not only unnecessary to this case but “purely academic” with respect to this case. Kapp v. Bob Sullivan Chevrolet Co., 234 Ark. 395, 405, 353 S.W.2d 5, 11 (1962). We consistently refuse to rule on issues that are unnecessary to our decisions. See Shackelford v. Patterson, 327 Ark. 172, 179, 936 S.W.2d 748, 752 (1997); Avery v. Ward, 326 Ark. 829, 838, 934 S.W.2d 516, 522 (1996); Duncan v. State, 263 Ark. 242, 244, 565 S.W.2d 1, 2 (1978); Rogers v. Watkins, 258 Ark. 394, 396, 525 S.W.2d 665, 667 (1975). If the majority wishes to abandon precedent and alter fundamentally the requirements of Rule 2.3, it should do so in a case in which the question of whether the rule has been violated is ripe and squarely before us.
Second, the majority proposes a dramatic change in the law of criminal procedure on the basis of a contention that the parties did not argue, brief, or in any manner present to the Trial Court or this Court. In so doing, the majority strays from our sound practice of dechning to resolve legal questions that are not briefed by the parties. See, e.g., Rider v. Cunningham, 232 Ark. 407, 409, 337 S.W.2d 868, 869 (1960); Union Motor Co. v. Turbiville, 223 Ark. 92, 97 n.5, 264 S.W.2d 592, 594 n.5 (1954); Johnson v. McAdoo, 222 Ark. 914, 917 n.2, 263 S.W.2d 701, 703 n.2 (1954); Wright v. Aaron, 214 Ark. 254, 263 n.6, 215 S.W.2d 725, 729 n.6 (1948); Avery v. State, 15 Ark. App. 134, 139, 690 S.W.2d 732, 735 (1985) (Cracraft, C.J., concurring). In the case at bar, the State has not asked the Court to overrule our cases such as Martin v. State, supra, that require suppression of evidence under Rule 2.3 when the police fail to make a verbal warning and lack probable cause to arrest. The State accepts this “bright-line rule” as the law and essentially concedes that the police violated Rule 2.3 on January 8. Its only argument on appeal is that suppression of Mr. Bell’s statement was improper because the police had probable cause to arrest Mr. Bell.
Third, the majority offers no persuasive rationale for departing from the principle of stare decisis and abandoning Rule 2.3’s verbal-warning requirement. As mentioned, we held only two months ago that Rule 2.3 imposes “a ‘positive duty’ upon the police to inform the citizen of his or her right to refuse the request” to come to, or remain at, a police station “although the plain words of Rule 2.3 do not specifically require such a verbal notice.” Martin v. State, 328 Ark. at 429, 944 S.W.2d at 517.
In the Martin case, we found that the police had requested the defendant to come to the station for questioning but had failed to give him any verbal notification that he could refuse the request. We said that “this fact alone amounted to a violation of Rule 2.3” and that the Trial Court erred by denying the motion to suppress the statement given by the defendant to the police. Martin v. State, 328 Ark. at 430, 944 S.W.2d at 517. We did not reverse, however, because we determined that the admission of the statement was harmless error. The State did not suggest in the Martin case that the police had probable cause to arrest the defendant and that his statement was properly admitted on this basis. The Court, obviously following the sound practice of not deciding issues that are not argued or briefed by the parties, therefore did not address the probable-cause issue.
We cited in the Martin case four other decisions from this Court imposing the verbal-warning requirement under Rule 2.3. See Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989); Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987).
As mentioned, the majority proposes to “retreat” from these cases and analyze the “totality of the circumstances” — rather than the single question of whether a verbal warning was given — in order to determine whether the police have violated Rule 2.3, whether a “seizure” has occurred under the Fourth Amendment, and whether a defendant’s custodial statement ultimately should be suppressed. The majority asserts this approach is based upon “the constitutional rule” announced in United States v. Mendenhall, supra.
The observation of the majority, also espoused in the concurring opinion in the Martin case, is that taking a person to the police station without expressing his or her freedom not to go has been viewed as a “seizure” of the person. That is based on an erroneous view of our Rule 2.3 cases. Whatever the language in those cases may be, it is not the law that a police-citizen encounter in which the police fail to give a Rule 2.3 warning is necessarily an illegal seizure under the Fourth Amendment. The concurring justices in the Martin case, and the majority in this case, apparently believe our Rule 2.3 cases stand for that proposition. In the Martin case, the concurring justices roundly criticized the idea that an illegal Fourth Amendment seizure necessarily occurs when the police fail to give a Rule 2.3 warning. The concurring opinion cited the plurality opinion in United States v. Mendenhall, supra, for the proposition that a person is “seized” under the Fourth Amendment only when, considering the totality of the circumstances rather than any one factor, “a reasonable person would have believed that he was not free to leave.” Martin v. State, 328 Ark. at 437, 944 S.W.2d at 521 (Brown, J., concurring), quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980). The concurring opinion cited other language from the Mendenhall case and language from other court decisions for the proposition that whether a Fourth Amendment seizure occurs does not depend on whether a person is told that he or she is free to decline to cooperate. The concurring opinion urged that we follow these principles and reject the idea that a police officer’s failure to provide a verbal Rule 2.3 warning transforms his encounter with a citizen into an illegal Fourth Amendment seizure. It made an additional, but different, suggestion that the court utilize the “totality of circumstances” test, not only to determine whether a Fourth Amendment seizure has occurred, but also to determine whether a Rule 2.3 violation has occurred.
First, it is important to understand that our cases have never held that an illegal Fourth Amendment seizure occurs when the police request a person to accompany them to the station without providing the verbal warning prescribed by Rule 2.3. To the extent that some of the language in our Rule 2.3 cases suggests otherwise, it is misleading. See, e.g., Hart v. State, 312 Ark. at 605, 852 S.W.2d at 315 (“Since the detectives did not comply with [Rule 2.3], there was a seizure of the appellant and a violation of his rights under the Fourth Amendment unless the detectives had probable cause to arrest him.”) The definition of a Fourth Amendment seizure has long been settled by the Supreme Court and derives from the plurality opinion in the Mendenhall case. It is erroneous to suggest that our Rule 2.3 cases add anything to it.
Second, it is important to understand that Rule 2.3 and the Fourth Amendment impose different and independent obligations on the police. In this case, if Mr. Bell had alleged that his custodial statement on January 8 should be suppressed because it was the fruit of an illegal seizure under the Fourth Amendment, then the fact that he was not given a Rule 2.3 warning would not necessarily establish a seizure and trigger application of any exclusionary rule. If the claim is that a statement should be suppressed because it followed upon an illegal Fourth Amendment seizure, that claim is analyzed, as the majority suggests, under the “totality of the circumstances” test.
If, however, the claim is that the police requested a person not under arrest to accompany them to the station without providing the verbal warning prescribed by Rule 2.3, then our bright-line interpretation of Rule 2.3 applies. Such a claim has nothing to do with the Fourth Amendment, and thus the definition of “seizure” from the Mendenhall case and the “totality of the circumstances” test are inapposite.
2. Probable cause
The majority’s recitation of facts constituting probable cause to arrest Mr. Bell is as follows:
. . . Terry Sims had lied to them about the time he returned the movie to Cloud’s Grocery Store on the day of the murders; that Sims was at the grocery store when the murders occurred; that a .22 caliber pistol was missing from the home of a friend of Sims’s, and that was the caliber of pistol used in the killings; that Bell told the police officers he was not with Sims after school on the day of the murders but that Bell’s brother contradicted that story; that Bell’s brother told law enforcement officers that just prior to the murders Sims came by to pick up Bell and that the two young men had earlier discussed returning a videotape and getting a soda; and that Bell returned a short time later with a soda pop.
If those are the facts that were known to State Police Investigator McCord, I suggest the officer had a pretty good understanding of the concept when he determined, as he initially testified, that he did not have probable cause to arrest Mr. Bell. Deputy Box, who was sent to pick Mr. Bell up, obviously did not think he had probable cause to arrest in view of his testimony that, had Mr. Bell refused to go with him, he would have called the sheriffs office for instructions. Far more important, the Trial Court specifically found that the officers lacked probable cause to arrest Mr. Bell.
As we have held on numerous occasions,
probable cause to arrest without a warrant exists when the facts and circumstances within the collective knowledge of the officers and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed by the person to be arrested.
Friend v. State, 315 Ark. 143, 147, 865 S.W.2d 275, 277 (1993).
When we review a trial court’s ruling on the legality of an arrest — i.e., whether there was probable cause for it — we say that “all presumptions are favorable to the trial court’s ruling” on the issue and that “the burden of demonstrating error” rests on the appellant. Id. Moreover, although “[p]robable cause to arrest without a warrant does not require the quantum of proof necessary to sustain a conviction,” Addison v. State, 298 Ark. 1, 9, 765 S.W.2d 566, 570 (1989), “mere suspicion” does not qualify as probable cause, and “[e]ven a ‘strong reason to suspect’ will not suffice.” Roderick v. State, 288 Ark. 360, 363, 705 S.W.2d 433, 435 (1986)(citations omitted). See Rose v. State, 294 Ark. 279, 282, 742 S.W.2d 901, 902 (1988) (stating “suspicion” will “not rise to the level of probable cause”); Moore v. State, 265 Ark. 20, 576 S.W.2d 211 (1979).
The State has not carried its burden of demonstrating that the Trial Court’s ruling on the question of probable cause was in error. The facts recited by the majority, at best, merely give rise to a suspicion that Mr. Bell had committed an offense. These facts show that, by January 8, the police had reliable information connecting Mr. Sims to the murders. With respect to Mr. Bell, however, the facts justified only the belief that Mr. Bell might have been with Mr. Sims at the store around the time of the murders.
Although the “essential facts” mentioned by the majority may have given the police probable cause to believe that Mr. Bell was present at the store with Mr. Sims, “mere presence” at the scene of a crime is not an offense. See also Branam v. State, 277 Ark. 204, 207, 640 S.W.2d 445, 447 (1982) (stating the fact that appellant was seen visiting co-defendant’s apartment prior to the crime does not give rise to probable cause); Vega v. State, 26 Ark. App. 172, 175, 762 S.W.2d 1, 2 (1988)(stating the fact that appellant and his companion were seen near building where burglary had occurred merely gave rise to “suspicion,” not probable cause).
There is an additional reason to affirm the Trial Court’s ruling on the probable-cause issue. We have said that the question of whether the police have probable cause for an arrest rests upon the collective information of the police officers rather than upon the information known to the individual officer who encounters the defendant. Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980). The majority relies upon this principle to explain away the fact that Deputy Box and Officer Plafcan, the officers who approached Mr. Bell on January 8, did not individually have probable cause to arrest Mr. Bell. According to the majority, the police “collectively” possessed knowledge that constituted probable cause to arrest Mr. Bell, and thus Mr. Bell’s statement on January 8 was erroneously suppressed.
The majority overlooks, however, our holding in Friend v. State, supra, and Ark. R. Crim. P. 4.1(d). According to Ark. R. Crim. P. 4.1(d),
[a] warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause [emphasis added].
We considered that rule in the Friend case and held that an arrest made by an officer who personally lacks probable cause to arrest is invalid unless the arresting officer is specifically instructed to make an arrest by officers who possess probable cause to arrest. In the Friend case, the testimony showed that the arresting officers lacked probable cause themselves and were instructed only to stop the appellant and hold him for questioning. No one who possessed probable cause to arrest told the officers who detained the appellant to arrest him. As a result, we held the arrest was made in violation of Ark. R. Crim. P. 4.1(d).
The Friend case has a clear application to the case at bar. Under our cases interpreting Rule 2.3, we say that a violation of the rule is excused if the police had probable cause to arrest the defendant at the time of the request to accompany the police to the office. The rationale behind this “exception” to the suppression requirement is that, if the police could have legally arrested the defendant in any event, then there is no reason to suppress the statement on account of their failure to provide the verbal warning under Rule 2.3. The availability of this “probable-cause exception” thus depends on whether the police could have made a legal arrest of the defendant at the time the “request” under Rule 2.3 was made.
Here, there was no “arrest” of Mr. Bell, and thus it may be tempting to distinguish the Friend case on that basis. However, it is clear that Deputy Box and Officer Plafcan, at the time they requested Mr. Bell to accompany them to the station, could not have made a legal arrest. The testimony at the suppression hearing clearly shows that they, like the officers in the Friend case, were not instructed to arrest Mr. Bell. Thus, even if the police “collectively” had probable cause to arrest Mr. Bell, any arrest made by these particular officers at that moment on January 8 would have been illegal under our holding in the Friend case. Therefore, we cannot say that the statement should have been admitted under the “probable-cause exception” to the general rule of suppression prescribed by Rule 2.3.
I respectfully dissent.
Glaze and Imber, JJ., join in Part Two of this opinion.