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Blair v. State

Court of Appeals of Arkansas, Division IV

November 5, 2014

REGGIE TERRELL BLAIR, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Page 609

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION. NO. 60CR-12-2141. HONORABLE BARRY SIMS, JUDGE.

Cheryl Barnard, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

Dustin McDaniel, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., for appellee.

KENNETH S. HIXSON, Judge. WHITEAKER and BROWN, JJ., agree.

OPINION

Page 610

KENNETH S. HIXSON, Judge

After a hearing on a motion to suppress and a jury trial in Pulaski County Circuit Court, appellant Reggie Terrell Blair was convicted of possession of a firearm by certain persons (a/k/a being a felon in possession of a firearm). Blair, a habitual offender, was sentenced to prison for twelve years. On appeal, appellant argues that the trial court clearly erred (1) in denying his pretrial motion to suppress because he was impermissibly stopped, detained, and searched, as was his vehicle; and (2) by not requiring the prosecutor to offer a race-neutral explanation for using peremptory strikes against two potential jurors both African American, as required by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We affirm.

Appellant's criminal charge was the result of a traffic stop at approximately 10:00 p.m. on June 1, 2012, in Maumelle, Arkansas, near Counts Massie Road and Maumelle Boulevard. Testimony at the suppression hearing included the North Little Rock police officer (Sergeant Behnke) who initiated the traffic stop, as well as the two back-up officers (Officers Rappold and Nannen) involved in the stop, seizure, and searches. Only Officer Rappold conducted a search of appellant's person and his vehicle. Marijuana was found in appellant's pants pocket, and subsequent to his arrest, a loaded gun was found in the car console. Appellant's written motion to suppress all evidence challenged the legality of the police stopping his car, searching of his person, and searching the vehicle he was driving. After conducting a pretrial hearing on the motion to suppress, the trial court summarily denied appellant's motion without explanation. The following is a summation of evidence taken at the suppression hearing.

Sergeant Behnke testified that he was working traffic enforcement that night when he observed a vehicle (a Dodge Charger driven by appellant) traveling from a residential area toward Maumelle Boulevard. Sergeant Behnke estimated appellant's vehicle to be traveling at approximately 50 miles per hour although it was in a 30-miles-per-hour speed zone when it passed his patrol unit. He admittedly did not have a radar to determine the car's precise speed. He estimated the car speed based on his more than twenty years of experience as a police officer, his experience as a certified radar operator and instructor, and his mandatory ability to estimate vehicle speeds " within a small window." He initiated a traffic stop after following the vehicle for approximately a minute. Upon approach, Sgt. Behnke heard the sole person in the car (appellant) say, " What do you want with me, mother f***er?" He told appellant that he had been stopped for driving too fast, and he asked appellant for his driver's license, registration, and proof of insurance. Appellant produced his driver's license, and Sgt. Behnke went back to his patrol unit. At that time, another patrol car arrived as " back up." Behnke admitted that he did not ultimately issue appellant a ticket for speeding. Instead, he prepared a uniform citation on which he handwrote, " Physical Arrest" at the top, and " (Vehicle Towed)" as well as " Too Fast for Conditions 27-51-201" near the bottom. Sergeant Behnke said that he did not have any involvement in the subsequent searches.

Officers Rappold and Nannen were in the back-up patrol car. Officer Rappold testified that he stood at the rear passenger side of appellant's car to keep watch while Sgt. Behnke completed the paperwork. Officer Rappold heard appellant say something, so he walked to the front of the vehicle, where he heard appellant remark, " You going to shoot me, mother

Page 611

f***er?" Rappold then asked appellant to exit the vehicle, to which appellant said, " No" and locked the door. After Officer Rappold asked a second time, appellant unlocked the driver's side door and stepped out of the car. The officer testified that he detected a very strong odor of intoxicants. Both Officer Rappold and Officer Nannen described appellant's demeanor during this traffic stop as " aggressive." At that point, Officer Rappold patted appellant's clothing and felt what he thought was marijuana in appellant's pants pocket, which was consistent with the strong, unique odor emanating from appellant while he was both inside and outside the vehicle. The officer testified that he did not need the assistance of a drug-detecting dog to verify that the odor was marijuana. After the officer patted appellant down and had appellant in handcuffs, the officer removed the plastic bags of marijuana from appellant's pocket. Officer Rappold advised appellant that his car would be inventoried and impounded because there was no one else there to drive it. The inventory search, prior to towing, revealed a loaded firearm with additional ammunition in the car's console. Officer Rappold testified that appellant told him that he had a gun in his car for protection.

Officer Nannen testified that he was the other back-up police officer. After they arrived on scene, Rappold stood watch at the rear passenger side of appellant's vehicle. Officer Nannen heard appellant yell something unintelligible to Rappold, and he observed Rappold approach the appellant's passenger-side window. Rappold then walked back to talk to Officer Behnke and then he returned to appellant's vehicle and asked appellant to exit the vehicle. Officer Nannen described appellant's demeanor as " very aggressive." He observed the pat ...


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