ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

RONALD B. PACHL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-1300

DECEMBER 18, 2002

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[NO. CR-2000-1256]

HONORABLE CHARLES EDWARD CLAWSON, JR., JUDGE

REVERSED AND REMANDED

Appellant, Ronald Pachl, entered a conditional plea of guilty to possession of drug paraphernalia after a Faulkner County Circuit Court denied his motion to suppress, reserving his right to appeal the trial court's suppression ruling pursuant to Ark. R. Crim. P. 24.3(b). He was sentenced to sixty months' probation, thirty-five days' community service, and fined $2,500. Appellant now appeals the trial court's ruling on his motion to suppress. We reverse and remand.

Appellant was at the apartment of Mike Vickstrom on the night of October 10, 2000. Appellant testified that he was there to help Vickstrom work on the transmission of his car. At approximately 11:30 p.m., two Conway police officers knocked on the apartment door and asked if they could look around the apartment. The officers testified that they hadreceived information from a juvenile that he had obtained marijuana from the apartment and that the people at the apartment were getting ready to "cook up" some methamphetamine. The juvenile also informed the officers that there was a stolen shotgun in the apartment.

The officers did not attempt to secure a warrant for the apartment, but rather decided to go immediately to the apartment and see if they could get consent to search from the resident of the apartment. The officers knocked on the door, and it was answered by Jeramie York, who did not live there. Vickstrom then appeared in the living room, and the officers testified that he motioned them into the apartment when they asked if they could come in and look around. They also testified that he made some comment such as "he did not have anything to hide." The officers noted that there were approximately eight to ten people in the apartment, which was very small. Because of the number of people in the apartment and the tip that there was a weapon in the apartment, the officers testified that, for their safety, they decided to pat down everyone in the apartment. One officer began making a quick sweep of the apartment as the other officer began getting everyone's identification. The officers testified that people were allowed to leave the apartment once they had been identified and patted down.

Appellant was patted down after one officer had already found drug paraphernalia in a bedroom. The officer that performed the search on appellant testified that he found no weapons in his pat-down search of appellant. The officer further testified that he noticed a large napkin sticking out of the appellant's shirt pocket. The officer asked appellant what was in the napkin and appellant responded "robot parts." The officer testified that he askedthe appellant if he could see the robot parts, and the appellant pulled the napkin out of his pocket and revealed a syringe to the officer. At that point, the officer placed appellant under arrest for possession of drug paraphernalia.

A suppression hearing was held at which the appellant argued that the police did not have justification for a pat-down search and that the syringe found in appellant's pocket should be suppressed. Appellant's attorney asked for permission to submit a brief, which the court granted. The trial court did not rule on the suppression hearing at that time. At the sentencing hearing, the trial court did not specifically say on the record that the court had denied the appellant's motion for suppression, but it was discussed in the exchange that took place at the sentencing hearing. Appellant entered a conditional plea to the charge of possession of drug paraphernalia. The trial court on several different instances identified appellant's plea as conditional. For example, the trial court stated, "...it's a conditional plea, which means you're going to appeal the Court's ruling on the suppression issue...." The prosecution was present for the hearing and was involved in the discussions concerning the conditional plea, even agreeing to allow the appellant to perform his community service after the appeal. After entering his conditional plea, appellant was sentenced by the court to sixty months of probation, thirty-five days of community service, and fined $2,500. This appeal followed.

We first address the State's contention that the appellant's appeal is barred because he failed to receive a ruling on his motion to suppress. In order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Fouse v. State, 73 Ark.App. 134, 144, 43 S.W.3d 158, 165 (2001). The burden to obtain a ruling is upon the movant, and matters left unresolved are waived. Id. This court will not presume the ruling of a lower court. Id. In the case at bar, the transcript does not reveal if the trial court specifically ruled on the appellant's motion to suppress. However, during the sentencing hearing, the trial court and counsel for the appellant made numerous references to the plea being a conditional one. The trial judge even stated that appellant would be appealing his ruling on the suppression issue. As far as this court is concerned, there were no issues left unresolved in relation to the trial court's decision on the appellant's motion to suppress. One would not appeal a favorable ruling; therefore, it is clear from the court's statements during the sentencing hearing that the motion to suppress had been denied. Accordingly, we hold that the appellant's claim is not procedurally barred.

In the alternative, the State also presents another argument for procedural bar of appellant's claim. The State contends that the appellant did not comply with the requirements of Ark. R. Crim. P. 24.3(b) (2001) and this court must dismiss appellant's claim due to lack of jurisdiction. Rule 24.3(b) states:

When Rule 24.3(b) is not strictly complied with, this court lacks jurisdiction to hear an appeal, even when the record reveals that the trial court attempted to enter a conditional plea. McCormick v. State, 74 Ark. App. 349, 354, 48 S.W.3d 549, 552 (2001). The ArkansasSupreme Court has held that Rule 24.3(b) requires a contemporaneous writing by the defendant, as well as proof that the conditional plea was approved by the trial court with the consent of the prosecuting attorney. Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999). The State's main argument in regard to compliance with Rule 24.3(b) is that the appellant's abstract fails to show that the court approved the conditional plea and that the State consented to it. However, upon a review of the appellant's abstract, it is clear to this court that the trial court approved of the conditional plea. After stating that this was a conditional plea, the trial court then stated, "I find this to be a free and voluntary plea and will approve the arrangement...." (Emphasis added). We are not sure what more the State would require from the trial court as to approval of a conditional plea, but we are satisfied that the trial court approved the conditional plea entered by the appellant.

As to the consent of the prosecutor, Rule 24.3(b) does not specify the manner in which the State must manifest its consent to the conditional plea of guilty. McCormick, supra. In McCormick, this court found that the prosecutor's presence, the contesting of the objectionable aspects of the disposition of the case, and allowing the plea to be entered as a "negotiated plea of guilty" would suffice for consent on the part of the prosecutor. In the case at bar, it is clear that the prosecutor was present during the sentencing hearing, even asking the court to find that the testimony at the suppression hearing provided the factual basis for the plea. A review of the entire transcript revealed that the prosecutor even agreed to allow the appellant to defer the performance of community service until after the appeal. We have no doubt that the State consented to the conditional plea of guilty entered by theappellant, and thus, we hold that Rule 24.3(b) was complied with by the appellant and we reach the merits of his appeal.

Appellant's only argument on appeal is that the trial court erred in failing to suppress the evidence obtained in the search of his person because the pat-down search went beyond what was reasonably necessary to ensure the safety of the officer. In reviewing a ruling denying a defendant's motion to suppress, we make an independent determination, based on the totality of the circumstances. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997), cert. denied, 522 U.S. 898 (1997). We reverse only if the trial court's ruling is clearly against the preponderance of the evidence. Id. We defer to the trial court in assessing the credibility of the witnesses. Id.

Appellant argues that under Ark. R. Crim. P. Rule 3.1, the police officers did not have reasonable suspicion to detain and search the appellant. A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain, for no more than a few minutes, any person whom he reasonably suspects is committing, has committed, or is about to commit a felony or a misdemeanor involving danger of forcible injury to persons or appropriation of or damage to property. See Ark. R. Crim. P. 3.1. Reasonable suspicion is defined as suspicion based upon facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion. Ark. R. Crim. P. 2.1; Stewart v. State, 332 Ark. 138, 145, 964 S.W.2d 793, 797 (1998).

If the police have specific, particularized and articulable reasons suggesting that the person being detained may be involved in criminal activity, then in a review of the totalityof the circumstances, justification for the investigative stop would exist. Frette v. City of Springdale, 331 Ark. 103, 109, 959 S.W.2d 734, 737 (1998) (emphasis added). In this case, the police officers had personally received information from a juvenile who had told them that he had obtained marijuana at the apartment where appellant was subsequently arrested. The juvenile also told the officers that the occupants of the apartment were getting ready to "cook" methamphetamine and that there was a stolen shotgun in the apartment. The juvenile, however, did not identify the occupants by name or description to the police officers.

The officers were not required to have reasonable suspicion in order for them to request the consent to search the apartment. McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988). Therefore, the police officers decided to try and obtain consent to search the apartment rather than securing a warrant. The officers both testified that there were eight to ten people in the apartment, which raised concerns for their safety. The juvenile did alert them to the presence of a shotgun in the apartment, but did not specify the location of the shotgun in the apartment. No weapons were located in the search of the apartment.

The officers testified that they had received permission to enter and search the apartment from Mr. Vickstrom. Mr. Vickstrom testified that he did not give them permission to enter the apartment. As stated before, we defer to the trial court in assessing conflicts in testimony and the credibility of witnesses. See Brunson, supra. We find no error in the trial court's determination that consent was given to the officers to search the apartment by a person with authority to do so.

The police officers were in the apartment with consent and apparently assessed the situation to be a potential threat to their safety. They testified that they did not release any of the occupants of the apartment until they had been identified and patted down for weapons. We recognize that Ark. R. Crim. P. 3.4 allows officers to search the outer clothing of a person they have lawfully detained under Rule 3.1 if they reasonably believe that person may be a danger to them or others. Although, in the case at bar, the officers did articulate that they had such a fear for their safety due to the number of people in the apartment, they did not testify that they had any reason to believe that a specific occupant of the apartment was armed or dangerous, or was involved in illegal activity. Thus, the officers could not have lawfully searched appellant under Rule 3.4.

The arresting officers did not testify that appellant appeared to be committing a felony or a violent misdemeanor when they entered the apartment. Nothing in the information that they received from the juvenile informant would have led them to believe that appellant was involved in any criminal activity. The officers may have had a reasonable suspicion that some illegal activity was occurring in the apartment, but they had nothing to tie that reasonable suspicion to appellant. Without a specific, particularized, and articulable reason that suggests appellant was involved in a methamphetamine "cook" or was in possession of a shotgun, the officers did not have the justification required under Rule 3.1 to detain appellant for questioning or a pat-down search. Stewart, supra.

We therefore hold that any evidence acquired in a search of appellant's person after he was unlawfully detained was tainted and should have been suppressed by the trial court. We reverse and remand.

Bird, J., agrees.

Jennings, J., concurs.