FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CR-15-161]
HONORABLE BILL PEARSON, JUDGE
Law Firm, P.A., by: Hugh R. Laws, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge.
Barry Duke appeals from his conditional plea of guilty to a
charge of possession of marijuana with intent to deliver. His
plea was conditioned upon an appeal challenging the circuit
court's denial of his motion to suppress evidence seized
during a traffic stop. We affirm.
reviewing a circuit court's denial of a motion to
suppress evidence, we conduct a de novo review based on the
totality of the circumstances, reviewing findings of
historical facts for clear error and determining whether
those facts give rise to reasonable suspicion or probable
cause, giving due weight to inferences drawn by the circuit
court and proper deference to the circuit court's
findings. Johnson v. State, 2015 Ark. 387, 472
S.W.3d 486. We reverse only if the circuit court's ruling
is clearly against the preponderance of the evidence.
Id. With these standards in mind, we turn our
attention to the evidence before the circuit court.
March 2015, Arkansas State Trooper Chris Goodman initiated a
traffic stop of a truck for speeding. Trooper Goodman
observed the truck overtaking and passing other vehicles, and
radar indicated the truck was traveling 74 miles per hour in
a 70 mile-per-hour zone. Duke was the operator of the truck.
Goodman approached the vehicle on the passenger side. Duke
rolled the passenger-side window halfway down to speak with
Trooper Goodman. When he did so, Trooper Goodman smelled an
odor of burnt marijuana emanating from the vehicle. Trooper
Goodman also noticed that Duke was "really, really
fidgety" like he was under the influence of a stimulant.
Goodman asked Duke for his license and registration. Duke
indicated that his license was in a bag located in the bed of
the truck. While Duke was in the process of retrieving his
license, Trooper Goodman asked if Duke had weapons or
anything illegal in his truck. Duke indicated he did not.
When Trooper Goodman asked for consent to search the vehicle,
Duke refused. At that point, Trooper Goodman requested the
assistance of Trooper Chase Melder and his drug dog.
drug dog alerted on the vehicle. Trooper Goodman inspected
the vehicle and noticed that the secondary gas tank had been
tampered with. The truck was then taken to the police station
where a more thorough search was conducted. During the
search, Officers found a bag containing ten pills (Adderall
and Xanax) in the cab of the vehicle and discovered seventeen
pounds of marijuana in the secondary gas tank under the
was subsequently charged with possession of marijuana with
intent to deliver.Prior to trial, Duke moved to suppress the
evidence, claiming that Trooper Goodman (1) lacked probable
cause to initiate the traffic stop and (2) improperly
prolonged the traffic stop without reasonable suspicion for
the purpose of conducting a dog sniff. A hearing on the
motion to suppress was held, wherein the above-referenced
evidence was presented to the trial court. The trial court
denied Duke's motion to suppress, finding that Trooper
Goodman's detention of Duke to conduct the dog sniff was
supported by individualized suspicion.
appeals the trial court's denial of the motion to
suppress, arguing that Trooper Goodman lacked reasonable
suspicion for the prolonged detention necessary to conduct
the dog sniff of his vehicle. More specifically, he argues
that the routine tasks associated with the traffic stop for
speeding had been completed prior to the dog sniff, that
Trooper Goodman articulated his claim of smelling burnt
marijuana only after Duke had refused to consent to a search
of the vehicle, and that, based on the totality of the
circumstances, Trooper Goodman's claim was not credible
and was simply an attempt to justify Duke's continued
begin our analysis by noting that the initial stop was legal,
and Duke does not appear to contest that issue on appeal.
Trooper Goodman testified that Duke was traveling 74 miles
per hour in a 70 mile-per-hour zone. See Ark. Code
Ann. § 27-51-201 (Repl. 2010). The legality of the stop,
accordingly, is not an issue in this appeal.
at issue is whether the reasonable, articulable suspicion was
actually developed before the legitimate purpose of the stop
had been completed or whether it was fabricated to justify
the stop. Trooper Goodman testified that he smelled an odor
of burnt marijuana when he first approached the vehicle. Duke
asserts that Trooper Goodman's testimony simply was not
credible. Duke points to several facts to support his
argument: (1) that while Trooper Goodman testified that he
smelled an odor of burnt marijuana, no evidence of
marijuana-burnt or unburnt-was found in the cab of the truck
where the odor allegedly emanated; (2) that Trooper Goodman
testified that burnt and unburnt marijuana have different
odors; and (3) that the recovered marijuana was unburnt. Duke
is essentially asking that this court substitute its
credibility determination for that of the circuit court. We
deny this request. Here, ...