NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

TERRY CRABTREE, JUDGE

DIVISION III

MITCHELL and MELODY TRIMBLE

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1303

NOVEMBER 14, 2001

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT

[NO. CR 99-197-3]

HONORABLE GRISHAM A. PHILLIPS, JR., CIRCUIT JUDGE

AFFIRMED

Pursuant to Arkansas Rule of Criminal Procedure 24.3(b) (2001), the appellants, Mitchell and Melody Trimble, conditionally pleaded guilty to possessing drug paraphernalia and methamphetamine with intent to deliver. The Saline County Circuit Court sentenced them to forty-two months' imprisonment, followed by a seventy-eight-month suspended sentence, and a $850 fine. On appeal, appellants claim that the circuit court erred in various respects by denying their motion to suppress evidence seized from their car after they were stopped by a police officer. We disagree and affirm.

When reviewing a trial court's ruling on a motion to suppress, the appellate courts view the evidence in a light most favorable to the State, make an independent determination based on the totality of the circumstances, and reverse only if the ruling was clearly against the preponderance of the evidence. Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001). Determining the credibility of witnesses at a suppression hearing is within the province ofthe circuit court. Johnson v. State, 27 Ark. App. 54, 766 S.W.2d 25 (1989).

At approximately 12:04 a.m. on March 3, 1999, Corporal Jeff Kling of the Benton Police Department saw a brown 1979 Chevy Camaro driving on Lillian Street in Benton. Corporal Kling noticed that, although there was no other traffic, the car was proceeding at twenty miles per hour in a thirty-mile-per-hour speed zone and began braking "extremely early" for a stop sign. At that time, the corporal was on his way to assist another officer, so he did not investigate the Camaro further. Several minutes later, at 12:35 a.m., Corporal Kling again saw the Camaro as it pulled out in front of him on Edison Avenue. As he followed it, again with no other traffic on the road, the Camaro traveled thirty-seven miles per hour in a forty-five-mile-per-hour speed zone and continually weaved within its lane of traffic. After following the car for about a mile, he stopped it because he suspected, due to the weaving, driving below the speed limit, and early braking, that the driver might be intoxicated.

Corporal Kling asked Melody Trimble, who was driving the car, to step out of the car. She presented her driver's license but no insurance or registration. The corporal then went back to the driver's side door, which Melody Trimble had left open, to ask Mitchell Trimble to retrieve that information for him. As the corporal stood at the door, he noticed "dried green vegetation" near the "rocker panel" on the driver's side, which he suspected to be marijuana residue.

When he saw the residue, he turned to Melody Trimble and asked her whether there were any drugs in the car. After looking over to her husband, she said, "I don't think so." When asked whether she and her husband used drugs and the last time they had done so, she responded that they had last used drugs three months ago. After having this conversation with Melody Trimble, Corporal Kling asked her if he could search the car, and she said that she did not mind. Although Melody Trimble was somewhat subdued at the time, apparently due to her ingestion of Haldol, she appeared to understand what the corporal was saying.

Corporal Kling then explained to Mitchell Trimble what had just happened and asked him whether he was using drugs. He responded that he was not. He did not appear to Corporal Kling to be under the influence of any substances. When asked whether there were any drugs in the car, he looked at his wife and stated, "I don't think so." Although Corporal Kling already had Melody Trimble's consent to search the car, he also asked Mitchell Trimble if he would mind if the corporal searched the car. Mitchell Trimble responded that he would not mind.

Because Mitchell Trimble was the registered owner of the car, Corporal Kling also asked him to sign a written consent form. The corporal reviewed the form with Mitchell Trimble. He also explained to Mitchell Trimble that the search was voluntary and that, if he did not want to allow it, then the car would not be searched. He further explained to Mitchell Trimble that he could stop the search at any time. Mitchell Trimble then signed the form using only his first name. At the time Corporal Kling obtained the appellants' consent to search the car, they were not under arrest and had not been issued any citations. However, appellants had not been told that they were free to leave, although they were free to do so. Melody Trimble was not given any citations for traffic offenses, including driving whileintoxicated.

At 12:38 a.m., during the time the Corporal Kling was speaking with Melody Trimble at the rear of his patrol car, Officer Jason Travis of the Benton Police Department arrived at the scene. Officer Travis witnessed Mitchell Trimble signing the consent form at 12:51 a.m. Because it was very cold outside and the appellants were not adequately dressed for the weather, Mitchell Trimble asked if they could sit in Corporal Kling's patrol car while he searched the Camaro. Officer Travis sat in the front seat of the patrol car, while the appellants sat in the back seat. Before beginning the search, Corporal Kling reiterated to the appellants that they could stop the search and merely needed to inform Officer Travis who, in turn would inform him.

Corporal Kling began his search of the Camaro in the front seat. While searching near the passenger's front seat, he found a plastic bag containing what appeared to be methamphetamine tucked underneath the console and the carpeting. Because he knew that the appellants could see what he was doing, he decided to place them in handcuffs as soon as he found the drugs. Just as he was getting out of the Camaro to return to the patrol car, Mitchell Trimble told Officer Travis to stop the search. However, Melody Trimble never withdrew her consent. Officer Travis informed Corporal Kling that Mitchell Trimble had withdrawn his consent. Later, Corporal Kling resumed the search of the Camaro because he had placed the appellants under arrest for drug possession.

Contrary to appellant's argument, the circuit court did not clearly err by concluding that Corporal Kling lawfully stopped the Camaro. Arkansas Rule of Criminal Procedure 3.1(2001) provides, in part, that:

[a] law enforcement officer . . . may . . . stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit . . . a felony, or . . . misdemeanor involving danger of forcible injury to persons 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.

For purposes of Rule 3.1, 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.

Ark. R. Crim. P. 2.1 (2001).

In order to make a stop, an officer need only reasonably suspect that a violation of the law has occurred or is about to occur. Ark. R. Crim. P. 3.1 (2001). Moreover, reasonable suspicion of driving while intoxicated is sufficient to authorize a stop under Rule 3.1. Wright v. State, 327 Ark. 558, 940 S.W.2d 432 (1997). A stop under Rule 3.1 is not rendered unlawful if an officer ultimately concludes that the person has not committed or is not about to commit the offense that the officer reasonably suspected was occurring or about to occur at the time of the stop. Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). In determining whether reasonable suspicion exists, the totality of the circumstances must be considered. Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989).

Under the totality of the circumstances, Corporal Kling's stop of the appellants' Camaro was lawful. Late at night, Corporal Kling saw the Camaro driving slowing and weaving, and also saw it brake early for an intersection. Not only did he see the slow drivingon two separate occasions, but the second time he followed it for about a mile, during which it continued at a slow speed coupled with weaving. Under these circumstances, he had reasonable suspicion to stop the driver for suspected driving while intoxicated. See Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994). Further, appellants argue that Corporal Kling's stop of the Camaro was pretextual in violation of the Fourth Amendment. Pretext is not a reason to invalidate objectively reasonable police activity. See Whren v. United States, 517 U.S. 806, 812-13 (1996).

Once he lawfully stopped the appellants, Corporal Kling did not unreasonably detain them. Rule 3.1 authorizes a stop for up to fifteen minutes or "for such time as is reasonable under the circumstances." In this case, Corporal Kling received oral consent from both appellants to search the Camaro before the fifteen minutes elapsed. The oral consent was sufficient to authorize the search of the car. See Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (Ark. App. 1980). At sixteen minutes into the stop, Corporal Kling also obtained Mitchell Trimble's written consent, but that consent was not necessary. Any extension of the time of the stop after the appellants consented to the search was due to the consent itself and, thus, was permissible. See Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999).

Even if Corporal Kling had detained the appellants for sixteen minutes before receiving their consent, as appellants argue, that additional minute was reasonable under the circumstances in light of the time necessary to determine whether Melody Trimble was impaired, to check for the car's insurance and registration, to obtain their consent for thesearch, and to adequately review the consent form with Mitchell Trimble. See Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997).

At any rate, Corporal Kling's observation of the marijuana residue in the Camaro, coupled with Melody Trimble's admission of somewhat recent drug use, provided him with reasonable suspicion that they possessed drugs, a possible felony violation of Ark. Code Ann. § 5-64-401 (Repl. 1997), and thus, allowed him to detain appellants for an additional fifteen minutes at that time. See Burris, supra. We conclude that Corporal Kling lawfully detained the appellants.

Finally, the circuit court did not clearly err by concluding that the appellants consented to the search of the Camaro. An officer can conduct a warrantless search with consent and, thus, need not have even reasonable suspicion in order to conduct a search. Johnson, supra. Consent is an issue to be determined from all of the circumstances. Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000). Here, the circuit court concluded that Mitchell Trimble did not attempt to revoke his consent until the time Corporal Kling found the drugs in the Camaro, not when he signed only his first name on the consent form. The factual finding that Mitchell Trimble did not revoke his consent at the time that he signed the form is not clearly erroneous, particularly in light of evidence of his later oral revocation of the consent while in the patrol car.

Moreover, the fact that the appellants were never told that they were free to leave did not invalidate their consent. See Miller, supra. Nor would appellants' consent have been invalidated if they had not been told that they had the right to refuse. See Scroggins, supra. Appellants' claim that the officers placed them in the patrol car also is of no consequence. When we view the evidence in the light most favorable to the State, as we must do, we are bound to credit the officers' testimonies that Mitchell Trimble asked to sit in the patrol car because it was a cold night, and they were underdressed. The circuit court did not clearly err by concluding that appellants consented to the search of their car. Furthermore, we hold that the circuit court did not clearly err by denying appellants' motion to suppress.

Robbins and Neal, JJ., agree.