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Whalen v. State

Supreme Court of Arkansas

October 20, 2016

JEREMY EDWARD WHALEN, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT [NO. MC-2013-202]. HONORABLE STEPHEN TABOR, JUDGE.

          Johnny Clay Collins II, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

          Law Offices of Bennett & Williams, by: Brad J. Williams; Island & Huff, by: Bell Island, pro hac vice, amicus curiae in support of appellant.

          REVERSED AND REMANDED; MOTION TO TAKE JUDICIAL NOTICE DENIED; COURT OF APPEALS OPINION VACATED.

          KAREN R. BAKER, ASSOCIATE JUSTICE

         This case is on petition for review from the Arkansas Court of Appeals. Appellant Jeremy Edward Whalen was convicted of driving while intoxicated-first offense after a bench trial in the Sebastian County Circuit Court. On appeal to the court of appeals, Whalen argued that (1) the Fourth Amendment to the United States Constitution, along with article II, section 15 of the Arkansas Constitution, required reversal of his conviction based on the illegally conducted sobriety checkpoint; and (2) the circuit court erred by failing to recognize the lack of probable cause to support any further detention of Whalen. The court of appeals reversed and dismissed Whalen's conviction based on Whalen's first point on appeal. Whalen v. State, 2015 Ark.App. 706, 478 S.W.3d 249.

         On December 29, 2015, the State petitioned this court for review of the court of appeals' opinion. As bases for review, the State contended that this case presented issues on which there is a perceived inconsistency in the decisions of the Court of Appeals and the Supreme Court, issues involving federal constitutional interpretation, issues of substantial public interest, and issues needing clarification or development of the law. Ark. Sup. Ct. R. 1-2(b)(2), (3), (4), (5) and 2-4(c)(ii) and (iii). On January 28, 2016, we granted the State's petition for review. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Whaley v. Beckham, 2016 Ark. 196, 492 S.W.3d 65 (citing Sullivan v. Coney, 2013 Ark. 222, 427 S.W.3d 682).

         The facts related to this appeal stem from a sobriety checkpoint conducted by the Arkansas State Police ("ASP"). On September 20, 2012, the ASP conducted a sobriety checkpoint on the Exit 11 ramp on Interstate 540 in Fort Smith. Whalen was stopped and subsequently arrested and charged with driving while intoxicated-first offense. On July 29, 2014, a bench trial was held.

         During the bench trial, Corporal Dwight Lee testified that during the checkpoint at issue, he made contact with Whalen. Corporal Lee testified that after he had smelled alcohol on Whalen, he retrieved his portable breathalyzer, but Whalen refused to submit to testing. Corporal Lee then asked Whalen pull over to the right shoulder of the roadway and instructed Trooper Brandon Margis to make contact with Whalen; Corporal Lee continued to conduct the checkpoint. With regard to establishing checkpoints, Corporal Lee testified that if the supervisors do not assign the checkpoint, "I will make a call and say, you know, we're going to do a checkpoint. And they just usually tell us, you know, it's okay, but they don't actually know where, because they would like for us to do them quite often." Corporal Lee explained that he would generally make the call and pick the location of the checkpoint and "would call the other guys and say, 'Hey, we're going to be here at such and such a time.' " As for the checkpoint at issue, Corporal Lee testified that checkpoint location was "most likely" at his discretion. Corporal Lee testified that as the senior officer in the field, he decided whether to allow traffic to come through if traffic got backed up. Corporal Lee testified that the officer in the field had discretion to determine what would happen during the checkpoint, and the supervisor would be called only if something major occurred, like a collision or a chase. Decisions regarding what to do with the individuals whom the officer comes into contact with, the flow of traffic, and the location, are left to the discretion of the field officer. Corporal Lee testified that the officers do not keep records of the number of cars they stop; "[w]e keep count of, the activity -- if we wrote a ticket, or anything like that." As to the submission of a written plan to the supervisor, Corporal Lee testified that, "once we generate all the activity, we do the ASP-20 with all the numbers on it, and then we submit it to the supervisor." Corporal Lee further testified that "normally what we do is we will just do a checkpoint, and send in the information to the supervisor, after we collect it or whatever. And even if we don't do any activity on it, we still have to send one, because they want to know what we were doing at that time." However, Corporal Lee explained that the supervisors do not have any direct input in planning the checkpoints; they are notified through the submission of the written plan. Corporal Lee testified that because the supervisors expect the checkpoints to be performed every weekend, the field officers do not mention the checkpoints to the supervisors until after the checkpoint has been performed.

         Trooper Margis testified that after Corporal Lee instructed Whalen to pull over, he made contact with Whalen. Trooper Margis testified that he could smell intoxicants coming from Whalen. Trooper Margis testified that there was no sergeant at the checkpoint at issue and that the most senior person present was Corporal Lee.

         At the close of the evidence, Whalen objected to the constitutionality of the checkpoint.

On July 31, 2014, the circuit court entered a written judgment finding as follows:
The motions to suppress and/or dismiss of Defendant are hereby denied. The Court finds Defendant guilty of Driving While Intoxicated - First Offense beyond a reasonable doubt[.]

         The circuit court sentenced Whalen to pay fines and costs of $690, serve twenty-four hours in jail with time suspended upon Whalen's completion of the defensive driving course within thirty days of the date of the judgment, complete Level I treatment, and ...


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