concurring. I agree with the majority that, based on the particular facts of this case, Detective Breckon had reasonable cause to believe that an offense had occurred, justifying a pat-down search of the appellant incident to his arrest. However, I disagree with the majority’s reliance on Wilson v. Maryland, _ U.S. _, 117 S.Ct. 882 (No. 95-1268, February 19, 1997), to justify the reasonableness of the search.
In Wilson the United States Supreme Court held that a police officer may order the passengers of a lawfully-stopped car to exit the vehicle. There, the defendant was a passenger in a lawfully-stopped automobile. The investigating officer ordered the defendant, who was sweating and appeared extremely nervous, out of the vehicle. When the defendant exited the car, an amount of crack cocaine fell out of the vehicle and onto the ground. The defendant was subsequently charged with possession of cocaine with intent to distribute.
The Wilson Court extended to passengers the rule articulated in Pennsylvania v. Mimms, 434 U.S. 106 (1977), that a police officer may order the driver of a lawfully-stopped vehicle to exit the car. There, the Court balanced the public and private interests in determining the reasonableness of the intrusion, deeming the additional intrusion of stepping outside of the vehicle de minimis. In Wilson, the Court likewise balanced the public and private interests, noting in particular legitimate concerns about officer safety in traffic stops when there are passengers inside the vehicle. While the considerations for ordering a passenger to exit were not as strong as those for the driver, “the additional intrusion on the passenger is minimal.” Maryland v. Wilson, supra.
Returning to the present case, there is no doubt that Maryland v. Wilson would provide a justification for ordering Brunson out of the vehicle. However, as noted by the majority, there was no evidence that Detective Breckon was concerned about personal safety. He simply smelled marijuana or smoke emanating from the vehicle, giving him probable cause to believe that an offense had been committed. Thus, the search in this case was reasonable because it was incident to his lawful arrest. See Ark. R. Crim. P. 12.1(d).
David Newbern, Justice, dissenting. The unconstitutionality of the search of Alton Levern Brunson and the subsequent error in admitting evidence found in the search were explained very well in the Court of Appeals opinion, Brunson v. State, 54 Ark. App. 248, 925 S.W.2d 434 (1996), and need not be explained again.
The majority of this Court concludes the search was proper because it was incident to an arrest. It relies on Ark. R. Crim. P. 4.1 (a)(iii) to justify the arrest. The rule provides:
(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
(iii) any violation of law in the officer’s presence; . . .
There was no “reasonable cause” to search Mr. Brunson until after the search had turned up marijuana on his person. In an attempt to apply the rule allowing a search incident to arrest, the majority says, “The search and the arrest were substantially contemporaneous as Detective Breckon testified he conducted a pat-down search of Appellant, found the marijuana, arrested Appellant, and then continued to search him following the arrest.” Clearly, the search commenced prior to any arrest, and the arrest was the result of the search.
Rawlings v. Kentucky, 448 U.S. 98 (1980), and Horton v. State, 262 Ark. 211, 555 S.W.2d 226 (1977), are cited by the majority for the proposition that a search prior to arrest is proper if there is probable cause to arrest prior to the search. The majority does not say what the probable cause for arresting Mr. Brunson may have been.
After expressing the legitimate general concern with respect to the safety of officers making traffic stops, the majority opinion states,
Contrary to Appellant’s assertions, Officer Breckon did not testify that he was not concerned about weapons or his safety. No evidence to that effect was ever introduced, nor were any questions on the subject of weapons or officer safety ever posed by either side. Accordingly, we conclude that the balance weighs in favor of the public interest and that the search was reasonable.
The implication is that a lack of evidence that an officer feared for his safety outweighs a citizen’s right under the Fourth Amendment to the United States Constitution to be free of an unreasonable search. That is a remarkable conclusion.
Also remarkable is the majority’s statement that it would be illogical to say none of four occupants of the vehicle could be arrested even though a marijuana smell came from the car. That suggests that when an officer reasonably suspects a crime has been committed by someone in a vehicle, all of the occupants of the vehicle may be arrested and searched. It is reminiscent of the opinion by Justice George Rose Smith in Catt v. State, 691 S.W.2d 120, delivered April 1, 1995, which appeared in the Arkansas Advance Reports at 285 Ark. 334, but which, sadly, did not make it into the bound volume. There, Justice Smith wrote to affirm the convictions of twin brothers, tried jointly, because an officer identified one of them, or someone who looked enough like him to be his twin brother, as having sold the officer cocaine. Justice Smith wrote, “We have no alternative except to hold that each verdict is supported by Officer Javert’s unshaken identification of the culprit, no matter who he was.”
May 5, 1997 William R. Simpson, Jr., Public Defender, by: Kent C. Krause, Deputy Public Defender, for appellant. Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.My appreciation of the literary value of Catt v. State, supra, which has been cited as far away as Delaware, see The [Wilmington] News Journal, p. B4, April 12, 1996], is so strong that I could never agree to overrule it. The logic espoused in support of the Catt brothers’ convictions should not, however, be extended to the search and the arrest of Mr. Brunson.
I respectfully dissent.