APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT. NO. CR-2011-500. HONORABLE DAVID L. REYNOLDS, JUDGE.
Teresa Bloodman, for appellant.
Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.
BRANDON J. HARRISON, Judge. GLADWIN, C.J., and ABRAMSON, J., agree.
BRANDON J. HARRISON, Judge
A jury found Antwan Fowler guilty of possession of a firearm by certain persons. He now appeals his conviction, arguing that the circuit court erred in denying his motions to suppress his statement to the police and evidence seized from his car. We affirm.
In a felony information filed 18 April 2011, Fowler was charged with possession of a firearm by certain persons and aggravated assault. (The aggravated-assault charge was later nolle prossed.) He filed motions to suppress a statement he gave to the police and a gun seized from his Ford Taurus. The court held a hearing on the motions in August 2012, at which the following testimony was presented.
Officer Andrew Birmingham with the Conway Police Department testified that on 16 April 2011, he responded to a call that Antwan Fowler had pointed a gun at someone on Oak Street and then left in a black Ford Taurus. After another officer located a black Ford Taurus at a nearby gas station, Birmingham pulled up behind the vehicle and relayed the license plate number; records indicated that the vehicle belonged to Antwan Fowler. Birmingham rolled down the window of his patrol car and spoke to a man, later identified as Fowler, who was standing near the vehicle, and asked if they could talk. In response, Fowler lifted his shirt to show his waistband, and Birmingham asked Fowler to turn around so that he (Birmingham) could verify that Fowler did not have a weapon. As Fowler approached Birmingham's vehicle on foot, he asked Fowler if he had any weapons on his person, and Fowler replied no, but stated that there was a gun in his car. At that point, for safety purposes, Birmingham handcuffed Fowler but told him that he was not under arrest. Birmingham then read Fowler his Miranda rights and activated his audio/video recorder. A CD of the subsequent recording was played for the court; in the video, Fowler again admitted that there was a gun in his car and that he was a convicted felon, and he was placed under arrest. On cross-examination, Birmingham agreed that when he made contact with Fowler and asked to speak with him, he was not free to leave.
Officer Chris Atkins testified that when he arrived on the scene, Officer Birmingham was standing in the parking lot and speaking to Fowler. Atkins testified that he " just kind of walked around" and saw a long gun propped up against the passenger seat in Fowler's vehicle.
Defense counsel argued that the police did not have probable cause or a " particularized suspicion" to justify questioning Fowler and that Fowler was " in custody" and should have been Mirandized as soon as Birmingham approached him. The court ruled from the bench:
I am going to find that there was probable cause to inquire of Mr. Fowler because of the dispatch and the fact that the vehicle had been identified as the suspect vehicle at the [gas station] by another officer. That the contact first made was not an in custodial contact. The question is a question that is commonly asked any time an officer has contact with any person in the public, do you have any weapons. He was not in custody at the time. . . . After he Mirandized, and it is clear that he did give the Miranda Warnings to Mr. Fowler, he stated that he understood them and then he continued to say that he had a weapon in the car. . . . Your motion is denied.
A jury found Fowler guilty of possession of a firearm by certain persons and recommended a sentence of eighteen years' imprisonment, which the court imposed in a sentencing order ...