ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

JESSIE DEMOND HUDSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1013

May 23, 2001

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, NORTHERN DISTRICT

[NO. CR99-14]

HON. F. RUSSELL ROGERS,

CIRCUIT JUDGE

AFFIRMED

Appellant entered a conditional plea of nolo contendere to possession of a controlled substance with intent to deliver and was sentenced to 121 months in the Arkansas Department of Correction. On appeal, he contends that the trial court erred in denying his motion to suppress evidence obtained during a search of his person. We affirm.

In reviewing the denial of a motion to suppress, we make an independent examination based on the totality of the circumstances. Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998). However, we defer to the superior position of the trial court to evaluate the credibility of the witnesses, and will reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Shaver v. State, 332 Ark. 13, 963 S.W.2d 598 (1998).

The evidence in the present case indicates that Officer Joe Griffin noticed a car in a Stuttgart park after the posted closing time. Four people, two men and two women, were seen

standing near the parked car. Officer Griffin, intending to approach the people in the park, called for backup. When Officer Griffin approached the group, he saw two glasses of what appeared to be whiskey on the car. While he stated that he was going to investigate to determine to whom the alcohol belonged, he also testified that he smelled the odor of intoxicants on everybody at the scene. He intended to arrest everyone for drinking in public and for being in the park after closing hours. Because it is dangerous to place someone who has not been searched in a patrol car, department policy requires that people who are to be transported must be searched for weapons. When the other man in the group, Tony Kinnard, was patted down, a controlled substance was found on his person and a scuffle ensued. Kinnard was subdued with difficulty. Appellant, who had been cooperative up to this point, was right in front of Officer Bradley Taylor at the time the controlled substance was found on Kinnard. Officer Taylor instructed appellant to place his hands on the car and not to move. Appellant did not comply and kept trying to take his hands off the car. Officer Taylor pressed his hand against the small of appellant's back to ensure that appellant kept his hands on the car. Upon doing so, he felt an object that he instantly recognized to be the handle of a gun. A loaded .40-caliber Glock pistol was taken from appellant's waistband. After the pistol was discovered, appellant was more fully searched, and a large quantity of cocaine was found on his person.

Appellant first contends that the evidence seized from his person should have been suppressed because there was no valid reason for the initial police encounter. We disagree. First, merely approaching a person standing in a public place does not constitute a seizurewithin the meaning of the Fourth Amendment. See Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998); Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997). In any event, appellant's argument would fail in light of the testimony that all four of the persons near the car were in violation of a city ordinance by virtue of their very presence in the park after closing hour. Under Ark. R. Crim. P. 4.1, a police officer not only may approach, but may in fact arrest a person when he has reasonable cause to believe that person has committed a violation of law in the officer's presence. See also Atwater v. Lago Vista, _____ U.S. ____ (April 24, 2001). Further contact was authorized after Officer Griffin approached the group and detected the odor of alcohol on those present, as drinking in public would violate both a city ordinance and a state statute, Ark. Code Ann. § 5-71-212(c) (Repl. 1997).

Appellant also contends that, even if the initial encounter was valid, his conviction should be reversed pursuant to Pettigrew v. State, 64 Ark. App. 339, 984 S.W.2d 72 (1998), because the police officers had no articulable reason to perform a protective search of his person. We disagree. Although Pettigrew also involved an initial contact that focused on a group of people suspected of drinking in a public place, the officer in Pettigrew immediately conducted a pat-down search without any indication that the suspect in that case might be armed or in possession of contraband. In the present case, however, appellant was not frisked until after a scuffle ensued nearby between a police officer and felony suspect Kinnard and after appellant did not comply with Officer Taylor's orders to keep his hands on the car.

Pettigrew cites Terry v. Ohio, 392 U.S. 1 (1968), for the proposition that:

The test in determining whether a frisk is reasonable is an objective one. While the officer need not be absolutely certain that the individual is armed, the basis for the frisk must lie in a reasonable belief that the officer's safety or that of others is at stake. Essentially, the question is whether a reasonably prudent person in the officer's position would be warranted in the belief that the safety of the police or that of other persons was in danger. The officer's reasonable belief that the suspect is dangerous must be based on "specific and articulable facts."

Pettigrew, 64 Ark. App. at 347, 984 S.W.2d at 75-76. Given the explosive situation in the present case and appellant's failure to comply with directions to keep his hands placed on the car during the scuffle, we think that a reasonably prudent person in Officer Taylor's position could reasonably believe that the safety of the officers was at stake and that a protective frisk was required. Once the pistol was found, the officers clearly had probable cause to arrest appellant, Ark. Code Ann. § 5-73-120(a) (Repl. 1997), and could more fully search his person incident to that arrest pursuant to Ark. R. Crim. P. 12.1.

In light of our conclusion that the pat-down search of appellant's person for weapons was permissible on grounds of officer safety, we need not address appellant's argument that the officers had no probable cause to arrest him prior to the pat-down search. However, as noted above, Officer Griffin testified that he saw appellant and three others in a city park after it had closed, that cups of whiskey were present, and that he smelled alcohol on all four of the subjects. That provided reasonable cause to believe that appellant had violated city ordinances and a state statute in the officer's presence, and was sufficient justification for appellant to be arrested and searched incident thereto.

Affirmed.

Stroud, C.J., and Roaf, J., agree.