FROM THE SEBASTIAN COUNTY CIRCUIT COURT [NO. MC-2013-202].
HONORABLE STEPHEN TABOR, JUDGE.
Clay Collins II, for appellant.
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
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.
R. BAKER, ASSOCIATE JUSTICE
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.
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).
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.
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
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.
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
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 ...