ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION IV

RAYCONDA HUMPHREY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-1265

September 3, 2003

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, NORTHERN DISTRICT

[NO. CR-1999-65]

HON. F. RUSSELL ROGERS,

JUDGE

REVERSED AND REMANDED

John Mauzy Pittman, Judge

The appellant in this criminal case was charged with possession of cocaine with intent to deliver after a police officer discovered crack cocaine in his pocket during a search incident to arrest. Appellant moved to suppress the introduction into evidence of the crack cocaine, arguing that he was not validly detained or frisked pursuant to Ark. R. Crim. P. 3.1 and 3.4, and that the arresting officer lacked probable cause to arrest him for public intoxication. The trial court denied the motion. Appellant then entered a guiltyplea pursuant to Ark. R. Crim. P. 24.3 conditioned on appellate review of the motion to suppress. This appeal followed.

For reversal, appellant contends that the trial court erred in denying his motion to suppress the introduction into evidence of items seized during the search because the arresting officer did not have reasonable suspicion to detain him or to search him for weapons, or reasonable cause to arrest him for public intoxication. We reverse and remand.

When a trial court's denial of a motion to suppress is challenged on appeal, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). Here, the evidence at trial showed that Officer Jerrell Smith of the Stuttgart Police Department was dispatched to a report of a disagreement or altercation at the corner of Taft and Henderson. When he arrived on the scene at approximately 9:00 p.m. on April 25, 2001, Officer Smith observed appellant and his girlfriend standing in a grass field adjoining some apartment complexes. He did not see anyone involved in a fight or altercation. Officer Smith walked up to the couple. Both appellant and his girlfriend advised him that there were not any problems. Although appellant was covered in sweat, he was well-dressed and cooperative, did not appear to be angry, and answered all of Officer Smith's questions. His speech was not slurred, and he showed no visible signs of intoxication. Officer Smith testified that appellant was a "nice man." Officer Smith noticed the odor of intoxicants on appellant, however, and immediately placed him under arrest for public intoxication. Appellant was handcuffed, and a subsequent search of his person yielded the crack cocaine that was the subject of appellant's motion to suppress.

Appellant argues that Officer Smith did not have reasonable suspicion to detain him under Ark. R. Crim. P. 3.1,1 or to search him for weapons under Rule 3.4.2 Appellant also argues that Officer Smith did not have reasonable cause to arrest him for public intoxication. The State asserts that the search of appellant's person was justified as a search incident to arrest because Officer Smith had reasonable cause to arrest appellant for public intoxication.

Even assuming that the report of an altercation permitted Officer Smith to detain appellant under Rule 3.1 to determine the lawfulness of his conduct, there is nothing in this record to give rise to a reasonable suspicion that appellant was armed and dangerous so as to justify a weapons search under Rule 3.4. In this context it is worth noting that appellant was not searched until after he had been arrested and handcuffed. The propriety of the search of appellant's person therefore depends on whether Officer Smith had reasonable cause to arrest him for public intoxication.

An officer who makes a lawful arrest may, without a search warrant, conduct a search of the person of the accused to protect the officer or others; to prevent the escape of the accused; to furnish appropriate custodial care if the accused is jailed; or to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense. Ark. R. Crim. P. 12.1. A law-enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that the person has committed any violation of law in the officer's presence. Ark. R. Crim. P. 4.1(a)(iii). Reasonable cause exists when the facts and circumstances within the officers' collective knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant in a man of reasonable caution the belief that an offense has been committed by the person to be arrested. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). Reasonable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction, and, in assessing the existence of reasonable cause, the appellate court's review is liberal rather than strict. Id.

Giving due regard to the trial court's superior position to determine the historical facts, we cannot agree that the totality of the circumstances in this case gave rise to reasonable cause to arrest appellant for public intoxication. Officer Smith testified that appellant was courteous and agreeable; that he did not appear intoxicated; that his speech was not slurred; and that appellant was arrested solely because Officer Smith detected an odor of alcohol about his person. Arkansas Code Annotated § 5-71-212(a) (Repl. 1997) provides that:

A person commits the offense of public intoxication if he appears in a public place manifestly under the influence of alcohol or a controlled substance to the degree and under circumstances such that he is likely to endanger himself or other persons or property, or that he unreasonably annoys persons in his vicinity.

Nothing in the record indicates that appellant was manifestly under the influence of alcohol to such a degree as to pose a threat to persons or property. Nor would it be reasonable to conclude, on the basis of the report of an altercation received by Officer Smith, that appellant was unreasonably annoying persons in his vicinity. Officer Smith was informed by appellant and appellant's girlfriend that they had had a disagreement, that appellant's girlfriend had thrown appellant's keys into the grassy field, that the disagreement had been resolved, and that they were attempting to retrieve appellant's keys. Given that Officer Smith never witnessed any altercation, and that appellant was polite and cooperative when questioned by Officer Smith, there is nothing to give rise to a reasonable belief that appellant was responsible for the disagreement or had been unreasonably annoying anyone. Consequently, we hold that the trial court erred in denying appellant's motion to suppress, and we reverse and remand.

Reversed and remanded.

Hart and Robbins, JJ., agree.

1 "A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of 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. An officer acting under this rule may require the person to remain in or near such place in the officer's presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense." Ark. R. Crim. P. 3.1.

2 "If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others." Ark. R. Crim. P. 3.4.