Cockrell v. State

2010 Ark. 258

370 S.W.3d 197

Colton COCKRELL, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 09–1254.

Supreme Court of Arkansas.

May 27, 2010.

Hancock, Lane & Barrett, PLLC, by: Charles D. Hancock, Little Rock, for appellant.

Dustin McDaniel, Atty. Gen., by: Kathryn Henry, Asst. Atty. Gen., for appellee

JIM GUNTER, Justice.

Appellant appeals his convictions for possession of a controlled substance, possession of drug paraphernalia, and carrying a weapon. On appeal, he asserts that the circuit court erred in (1) denying his motion to dismiss on the charge of carrying a weapon, and (2) denying his motion to suppress all evidence resulting from the search of his vehicle. Because we granted the State's petition for review of this case, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1–2(e). We affirm.

In a felony information filed April 1, 2008, appellant was charged with two counts of possession of a controlled substance, one count of possession of drug paraphernalia, and one count of carrying a weapon. On August 7, 2008, appellant filed a motion to suppress, arguing that there was no probable cause for the stop of his vehicle, so all evidence, both physical and testimonial, that resulted from the subsequent search should be suppressed. A suppression hearing and bench trial were held on October 7, 2008.

Officer Ryan Baker of the Sherwood Police Department testified that on January 25, 2008, he was on duty and had been assigned to a robbery detail. Twelve armed robberies had occurred in the Sherwood area over the previous two weeks, and Baker was part of a detail that had been assigned to patrol businesses in the area as a deterrent. At approximately 6:12 p.m. on January 25, Baker was in the Kohl's parking lot, where he came into contact with appellant. Appellant's truck, a white 1994 F–250 pickup, was backed into a parking space in a deserted area of the parking lot west of the store's entrance, away from the front doors. The truck was facing east, toward the Kohl's building, and behind the truck was a hill. Baker parked his patrol car directly in front of appellant's truck, facing northwest. Baker did not see anyone in the truck at first, but after pulling up and turning his spotlight on the truck, Baker observed appellant sitting in the driver's seat and reaching down out of Baker's line of vision. Baker approached the passenger side door with his gun drawn at his side and ordered appellant to show his hands several times. After he approached, he saw in plain view a small club laying in the front seat floorboard, and as he waited for backup, he also observed a baseball bat behind the seat. According to Baker, once backup arrived, he walked around to the driver's side and had appellant step out of the truck. Baker asked appellant why he had a baseball bat, and appellant stated that he traveled through Rose City and “you never know when you may need one.” After appellant stepped out of the truck, Baker observed a straw with a band-aid wrapped around it laying on the floorboard, and when checking the VIN number, also observed a razor blade on the floorboard with a white, powdery substance on it. At that point, Baker placed appellant under arrest and began searching the car. He located a small plastic bag containing a white, powdery substance on the floorboard. Baker identified the items he removed from the car, including a small-handled wooden club, which was a landscaping tool, and a small aluminum youth baseball bat. Baker also testified that after appellant was taken to the police department and searched, several pills later identified as hydrocodone were found in his pocket.

On cross-examination, Baker explained that the police had several leads about the person and vehicle involved in the robberies, but he did not recall if any of the leads involved a white Ford pickup. He stated that he investigated this particular truck because he had reason to believe it was involved in these robberies. The Kohl's store was open, but the truck was parked around by the loading docks, away from the other vehicles, and part of what he looked for on patrol was someone possibly casing a business. Baker could not see into the car at first, but when he turned on his spotlight, appellant looked up and saw Baker, and then began to reach down. Baker stated that, based on his training and experience as a law-enforcement officer, and the way appellant was parked indicating some type of criminal activity taking place, he suspected appellant of robbery.

Officer Chris Madison testified that he was also on duty the night of January 25, 2008, and that he responded to Baker's call for backup. Madison recalled that when he arrived at the scene, he parked his vehicle facing the driver's side door of appellant's truck. He did not specifically recall whether Baker's vehicle was facing north or south, and he did not believe that Baker's vehicle had “tee-boned” appellant's truck and blocked it in. He testified that when he arrived, Baker had appellant out of the truck, and they were both standing near the driver's side door, which was open. Madison stood by appellant and talked to him while Baker looked in the truck. Soon after, Baker placed appellant in handcuffs, and Madison transported appellant to the Sherwood Police Department in his vehicle. Madison testified that while emptying appellant's pockets he found the hydrocodone pills in a plastic baggie, and he advised Baker that he had found them. Madison hypothesized that, because the suspect or suspects in the robberies were disappearing quickly afterward, he thought there had to be a secondary vehicle waiting as a get-away car or that the suspect(s) lived nearby.

After the police officers' testimony, the court heard arguments from counsel regarding the motion to suppress. The State asserted that under Ark. R.Crim. P. 3.1, an officer can stop and detain any person who he or she reasonably suspects is committing or is about to commit a felony, and in this case, Officer Baker had a reasonable suspicion that justified approaching appellant and detaining him. The defense, on the other hand, asserted that the approach and detention were unjustified under Rule 3.1 and Rule 2.2, which gives officers the authority to request cooperation in the investigation or prevention of crime.

Regarding Rule 3.1, the defense argued that appellant's demeanor at the time was not indicative that he was committing any type of felony; instead, he was sitting in the parking lot of a department store during normal business hours in a marked parking spot, and there is no requirement that one pull into a parking spot instead of back into a parking spot. So, just seeing appellant sitting in his truck did not, it was argued, give Officer Baker the right to believe that a felony was being committed or about to be committed.

Regarding Rule 2.2, the defense argued that the justification for any investigatory stop depends upon the totality of the circumstances and whether the police have specific, particularized, articulable reasons indicating that the person is involved with criminal activity.¹ The defense also argued that a Rule 2.2 encounter is only permissible if the information or cooperation sought is in aid of an investigation or the prevention of a particular crime. In this case, the defense argued, the police were investigating a series of crimes in general, and the officer had no reason to identify appellant or appellant's vehicle as being involved in the robberies. In sum, the defense urged that the officer had no reasonable suspicion to justify approaching appellant's vehicle.²

The defense also addressed the charge of carrying a weapon and argued that, under Ark.Code Ann. § 5–73–120 (Repl.2005), a person commits the offense of carrying a weapon if he possesses a handgun, knife, or club on his person, in his vehicle, or otherwise readily available for use. Under the statute, a club is defined as “any instrument that is specially designed, made, or adapted for the purpose of inflicting serious physical injury or death by striking.” Ark.Code Ann. § 5–73–120(b)(1). The defense argued that neither the landscaping tool nor the aluminum bat met that definition. Therefore, the defense argued, “we feel that the motion for suppression of the weapons should be granted as well as ... the motion requesting that Officer Baker's approach on the vehicle is unjustified.” The defense also mentioned Ark.Code Ann. § 16–81–203 (Repl.2005), which lists factors to be considered in determining if an officer has grounds to reasonably suspect, and argues that under a totality-of-circumstances test, these factors were not sufficiently met. The court announced that it was denying the motion to suppress, asserting its belief that this was a “textbook stop.” The court stated that there was “a reasonable suspicion to make that stop, and a reasonable suspicion turned into probable cause as a result of seeing the club.”

The State then continued presenting its case by offering the testimony of Lize Wilcox, a forensic chemist with the Arkansas Crime Lab. Wilcox testified that cocaine residue was found on the razor blade; methamphetamine cocaine and dimethyl sulfone were found on the straw, cocaine hydrochloride was found in the plastic baggie from the floorboard; and the pills found in appellant's pocket were fifteen tablets of hydrocodone and acetaminophen.

The State then rested its case, and the defense moved for a dismissal of count four, the charge of carrying a weapon.³ The defense argued that there was no evidence that appellant had intended to use either the baseball bat or the landscaping tool as a weapon or that he did use either item as a weapon. The court denied the motion, and the defense rested and renewed the motion, which was denied. The court found appellant guilty on all four counts, and at a later sentencing hearing, sentenced appellant to five years' probation. Appellant was also ordered to pay a...