concurring. I agree with all aspects of the majority opinion except for its finding on the Fourth Amendment issue. I do not believe there was probable cause to arrest or detain Addison. Moreover, I am of the opinion that the officer’s conduct, after the initial stop and detention, did not constitute a seizure which would implicate the Fourth Amendment to the United States Constitution.
On the Fourth Amendment issue, Addison argues that his identification as the rapist and his confessions followed directly and uninterruptedly from an illegal detention by the police and therefore the evidence should have been suppressed. The grounds for suppression urged by Addison are (1) that Officer Blankenship lacked reasonable suspicion to stop him and (2) he was illegally detained after he was stopped by the officer. It is Addison’s contention that the evidence sought to be suppressed was tainted fruit of his illegal stop and detention under Wong Sun v. United States, 371 U.S. 471 (1963).
The Stop
The authority in Arkansas for stopping a suspect absent probable cause is found in Rule 3.1 of the Arkansas Rules of Criminal Procedure. The rule is patterned after the United States Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968). Rule 3.1 provides as follows:
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 comnv.tting, 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.
For purposes of Rule 3.1, “reasonable suspicion” is defined in Rule 2.1 of the Arkansas Rules of Criminal Procedure as follows:
“Reasonable suspicion” means 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.
At this point, an appreciation of the circumstances preceding Addison’s stop is important.
Over a nine week period, there were four reported rapes and one attempted rape in the area where Addison was stopped. Four of the crimes were committed on Friday, Saturday or Sunday and all of the crimes were committed in the late evening or early morning.
The victims’ identifications of their assailant was uniformly consistent in several respects and the incident involving one victim’s husband all but confirmed the fact that the assailant was on foot and acting alone. There was also reason to believe that the assailant had used a fictitious name. Moreover, police protection in the area was obviously increased and they were interested in checking out all possible suspects.
On appeal, Addison argues that the officer lacked reasonable suspicion to stop him and that his stop was the result of a “dragnet” approach to investigating the crimes due to the fact that others were also stopped that night. I disagree.
Addison was travelling on foot and alone at 10:40 p.m. on a Friday night. He was in the general area where the crimes were committed and he fit the description of the rapist. These circumstances provided considerably more than a bare, imaginary, or purely conjectural suspicion that Addison was the culprit. Likewise, the detention of Addison on the street was lawful under Rule 3.1 because Addison had no identification, gave several different reasons for being in the area, and could not tell the officers the address of where he had just been.
It is true that the officers had stopped at least two other suspects that night. However, this can hardly be considered to parallel the type of “dragnet” investigative process outlined by the United States Supreme Court in Davis v. Mississippi, 394 U.S. 721 (1969). In Davis, the Supreme Court condemned a procedure where police randomly rounded up black males for the purpose of obtaining their fingerprints. The principles announced in Davis are simply not applicable to this case.
The Detention
Next, Addison argues that he was illegally detained after his stop by Officer Blankenship. He relies primarily on Rules 2.3 and 3.1 of the Arkansas Rules of Criminal Procedure and our decisions in Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980), and Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978), to support three grounds for this argument.
First, Addison contends that if, under Rule 3.1, the officer had reasonable suspicion to stop and detain him, the officer was required to cause his release immediately upon learning his identity. As a product of this, Addison claims that because his photograph was taken after his identity was determined by the detective, the act of obtaining his photograph was investigative in nature and in violation of Rule 3.1. Secondly, Addison argues that consent cannot be relied upon in this case. He reasons that the state failed to prove his conduct was voluntary and that Officer Blankenship did not tell him that he didn’t have to go to the station. Finally, Addison maintains that his consent was merely acquiescence to a claim of lawful authority.
These arguments ignore the facts and misconstrue the law.
I have concluded that Officer Blankenship had legal justification for stopping Addison pursuant to Rule 3.1 of the Arkansas Rules of Criminal Procedure. See also, Terry v. Ohio, 392 U.S. 1 (1968).
Once stopped, the officer was presented with additional factors which would have led him to reasonably suspect that Addison had committed the rapes. Moreover, the officer’s attempts to verify Addison’s identity, or the lawfulness of his conduct, also proved unsuccessful. As a result of this, the officer became faced with the prospect of witnessing an unknown suspect depart the area without taking any steps to satisfy himself that he could be found again.
In view of the fact that Addison’s identity had not been verified, the officer’s immediate release of Addison on the street was not required under the law nor expected under the circumstances.
If the scope of an investigation during a stop becomes unreasonable, the detention will be considered a formal arrest that must be supported by a probable cause. Florida v. Royer, 460 U.S. 491 (1983). However, there is nothing unreasonable, or, for that matter, surprising about the officer asking Addison if he would mind going to the station. Conversely, when Addison agreed to go it would be unreasonable, under the circumstances, to hold that the officer was required to tell Addison he didn’t have to go if he didn’t want to.
Rule 2.3 of the Arkansas Rules of Criminal Procedure requires only that the officer “take such steps as are reasonable” to make clear that there was no legal obligation to comply with the officer’s request. It follows that the “steps” to be taken must be evaluated on a case-by-case basis considering the totality of the circumstances.
Having found that the officer’s actions did not violate any provisions of the Arkansas Rules of Criminal Procedure, the next inquiry must be whether the officer’s actions, after the initial detention on the street, constituted a seizure which implicates the Fourth Amendment. A seizure occurs when, under the totality of the circumstances, a reasonable person would believe he is not free to leave. See, United States v. Mendenhall, 446 U.S. 544 (1980), and INS v. Delgado, 466 U.S. 210 (1984).
In Mendenhall, Justice Stewart identified four circumstances that may indicate that a Fourth Amendment seizure has occurred. They are “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” 446 U.S. at 554.
None of these circumstances are, present in this case.
In this case, Addison was released after his initial stop and the trial court found that the question of going to the station was more of an “afterthought” on the officer’s part. In addition, when he was asked if he would mind going to the station, Addison’s only question was whether the officers would take him home after he went to the station. That response was uncontradicted at the hearing and suggests that Addison knew that he was under no legal obligation to accompany the officers to the station. In addition, through all of this, according to the officer, Addison did not act as if he didn’t want to go.
At the station, Addison was reminded that he was there voluntarily. Again, there was no evidence offered to negate this statement. Addison was subsequently told why he was there and he agreed to be fingerprinted and photographed to assist the police in eliminating him as a suspect. Apparently, Addison’s photograph was the only piece of evidence obtained from him at the station that led in any way to his arrest and conviction of rape, burglary and theft of property.
The United States Supreme Court in Hayes v. Florida, 470 U.S. 811 (1985), outlined those circumstances under which the police may make a brief detention of a suspect in the field for fingerprinting based upon less than probable cause. The Court in Hayes reasoned that:
There is thus support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime, and if the procedure is carried out with dispatch. 470 U.S. 817.
If, then, Officer Blankenship had possessed a camera with him in the field he could have taken Addison’s picture without implicating the Fourth Amendment. Apparently, under Hayes, this could have been done without Addison’s consent because the procedure was reasonable, represented a much less serious intrusion upon personal security and involved evidence of a non-testimonial nature. Hayes v. Florida, supra.
I am unable to see how the circumstances of Addison’s voluntary trip to the station could rise to a constitutional level where the scope of the investigation, i.e., taking photographs and fingerprints, was not overly intrusive, was limited in nature, and was reasonable. Therefore, the officer’s conduct, after the initial stop and detention, did not constitute a seizure which would implicate the Fourth Amendment to the United States Constitution.
Consent
Next is the issue of legal consent as it pertains to the facts of this case.
I have thoroughly examined this issue, and am convinced that the traditional standards which control a normal consent search situation are appropriate for the disposition of this case. I rely upon the totality of the circumstances test adopted by the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
It is incumbent on the state to prove consent by clear and positive testimony, Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987), and the state’s burden is not met by showing only acquiescence to a claim of legal authority. Burks v. State, supra; Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978).
Nonetheless, based upon the testimony at the suppression hearing, including Addison’s testimony, and the totality of the relevant circumstances, I believe that Addison voluntarily accompanied the police to the station and while there consented to be photographed and fingerprinted.
In Schneckloth, the defendant moved at trial to suppress evidence which had been obtained in a search of an automobile in which he was a passenger. A police officer had legally stopped the car and was given permission by the driver to search it. Bustamonte argued that his consent was involuntary because the driver was not informed of his right to refuse the search. In considering the appropriate standard for determining whether the consent was voluntary, the United States Supreme Court turned for guidance to cases which deal with voluntariness of a defendant’s confession under the Fourteenth Amendment. After reviewing these cases the high court concluded:
The significant fact about all of these decisions is that none of them turned on the presence of absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances. See Miranda v. Arizona, 384 U.S. 436, 508 (Harlan, J., dissenting); id., 534-535 (White, J., dissenting). In none of them did the Court rule that the Due Process Clause required the prosecution to prove as part of its initial burden that the defendant knew he had a right to refuse to answer the questions that were put. While the state of the accused’s mind, and the failure of the police to advise the accused of his rights, were certainly factors to be evaluated in assessing the “voluntariness” of an accused’s responses, they were not in and of themselves determinative. (Citations omitted)
Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. 412 U.S. 226-27.
Addison’s claim that he believed he was required to go to the station is not determinative. The test is what a reasonable person would have believed, United States v. Mendenhall, supra, and voluntariness does not depend upon whether the police informed Addison that he could decline to cooperate. Schneckloth v. Bustamonte, supra.
Finally, Addison raises the factual issue of whether the situation on the street produced enough legally colorable coercion to reduce his consent to “mere acquiescence to claimed lawful authority.” Bumper v. North Carolina, 391 U.S. 543 (1968).
Bumper stands for the proposition that a search can never be justified on the basis of consent when that consent has been given after an official has asserted that he or she possesses a warrant.
I do not liken this case to one in which a search is conducted pursuant to an invalid or nonexistent search warrant. There was no misrepresentation as to what was required of Addison or the validity of the officer’s actions.
I join the majority, however, in affirming the trial court.