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Hoey v. State

Court of Appeals of Arkansas, Division IV

April 26, 2017



          Scholl Law Firn, P.L.L.C., by: Scott A. Scholl, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kristen C. Green, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Judge

         Robert Maurice Hoey was convicted in the Miller County Circuit Court of possession of more than twenty-five pounds of marijuana with intent to deliver, and he was sentenced to eight years' imprisonment in the Arkansas Department of Correction. On appeal, Hoey contends that the trial court erred by (1) denying his motion to dismiss, thereby violating his right against double jeopardy; (2) denying his motion to suppress; and (3) admitting certain evidence. We affirm.

         I. Facts

         A. Motion to Suppress

         Hoey was charged after a traffic stop on Interstate 30 north of Texarkana, Arkansas, resulted in police finding fifty-six pounds of marijuana in the trunk of his car. Hoey filed a motion to suppress alleging that the marijuana was seized in violation of his Fourth Amendment right to be free from unreasonable search and seizure.

         At the hearing on Hoey's suppression motion held on October 29, 2014, Arkansas State Police Officer Bernard Pettit testified that he had made the traffic stop because the car Hoey was riding in was following too closely to the car in front of it.[1] Pettit said that, after he had stopped the car, he identified himself to the driver, Harry Taylor, who handed over his license and a one-way car-rental contract from Austin to Philadelphia signed by Hoey as the renter.[2] Taylor was not listed as an additional driver on the contract. Hoey also gave Pettit his license, and Pettit said that he ran a criminal history check on both men and discovered that both had criminal histories. Pettit asked Taylor to step back to Pettit's car with him, and he noticed that Taylor never calmed down, even though he said that drivers will usually do so within a minute or two. Pettit asked Taylor about his trip while Taylor signed the warning Pettit had issued to him. Taylor told Pettit that he and Hoey had taken a flight from Delaware to Austin to visit Taylor's aunt, with whom they had spent the night. However, Taylor could not remember his aunt's name. Pettit said that, based on all he had learned, including his having seen air fresheners, food bags, and several cell phones in the car, he left Taylor in the police car and approached Hoey to obtain his account of the trip. Hoey was nervous and said that he and Taylor had taken a flight from Delaware to Austin to visit Hoey's pregnant girlfriend and that they had spent the night in a hotel.

         Pettit said that based on the totality of these indicators, he thought Hoey and Taylor may be involved in criminal activity. He said that Hoey got out of the car, and Pettit became concerned about whether the car contained illegal guns, explosives, or narcotics. Pettit asked Taylor, as the driver of the vehicle, for consent to search the car, and Taylor denied the request. Pettit then asked for Hoey's consent because Hoey had signed the rental agreement. Hoey also declined. Pettit said that he told the men he wanted to search the car for drugs, guns, or explosives and that he would bring a K-9 unit to do a free-air sniff around the vehicle. He said that the closest K-9 unit was in Texarkana. Pettit also called for backup. Pettit said that he indicated to Hoey that he had called for the closest K-9 unit, but that it may take a while for it to get there. Hoey told Pettit that it was not a problem, and Pettit noted in his report that Hoey did not mind waiting.

         Pettit said that when the K-9 unit arrived, the dog alerted twice while conducting a free-air sniff around the vehicle. Pettit said that the dog's alert gave the police probable cause to search the car, and Pettit found a black plastic bag in the trunk containing a bale that was later determined to be marijuana. The cell phones were also confiscated from the car, and both men were placed under arrest and Mirandized.

         In denying Hoey's motion to suppress the marijuana evidence, the trial court ruled that the police officer had sufficient reasonable suspicion to detain Hoey and Taylor. The trial court stated, "The critical point that needs to be made is that there was a reasonable suspicion to go forward after the conversation back at the car during the process of getting the warning citation signed." The trial court then found that the police dog's alert on the car provided probable cause to conduct a search of the vehicle. The trial court found that, considering the length of time it took for the K-9 unit to arrive at the scene, Hoey and Taylor were not delayed an unreasonable amount of time under Arkansas Rule of Criminal Procedure 3.1.[3]

         At Hoey's request, another hearing was held on April 5, 2016, so the parties could argue the application of certain caselaw to Hoey's motion to suppress. The trial court took the matter under advisement and issued a letter opinion on May 10, 2016, denying the suppression motion and finding as follows:

The factors that provide reasonable suspicion to believe that the Defendant was engaged in criminal activity are numerous:
1) Officer observed multiple cell phones in the vehicle which may be used by persons involved in drug trafficking;
2) Officer observed multiple air fresheners in the vehicle which are known to be used to mask the odor of illegal substances in a vehicle;
3) Officer observed fast food trash in the vehicle also common when drugs are being moved by vehicle;
4) The Officer noticed the extreme nervousness displayed by Taylor who had quivering lips and his arms, legs and hands were shaking uncontrollably when he approached the vehicle;
5) The officer noticed that the passenger (Hoey) was shaking and extremely nervous at the time he first approached and throughout the stop as well;
6) Neither Taylor nor Hoey would make eye contact with the officer;
7) Taylor provided a car rental agreement that the officer noted was a one-way rental agreement from Austin to Delaware which was suspicious because the pair had flown to Austin the afternoon of February 14th and were now stopped in Miller County in the early afternoon of February 15th;
8) The one-way plane ticket indicated an intent to rent a vehicle to return to Delaware rather than a round-trip ticket which would have been more logical;
9) The routine traffic search for outstanding warrants returned that both had extensive criminal arrests for Hoey and Taylor;
10) Taylor could not give name of his aunt who he went to visit and who he said they spent the night with;
11) Hoey gave completely different story that they flew down to Austin to visit Hoey's pregnant girlfriend;
12) Hoey said that they spent the night in a hotel contradicting Taylor's version of events that they stayed with his aunt for whom he had no name;
These observed and articulable factors are almost exactly the same factors identified as sufficient to establish reasonable suspicion in Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). . . . .
In this case, the officer had reasonable suspicion based on the totality of the circumstances, accompanied by specific, particularized and articulable reasons indicating that the person may be involved in criminal activity. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Johnson v. State, 2012 Ark.App. 167, 392 S.W.3d 897 (2012). . . .
In this case, the officer was alone on an interstate highway miles from Texarkana in a rural setting and had to wait for a Texarkana Arkansas Canine Officer to be called to the scene since a drug dog was unavailable from his troop headquarters in Hope, Arkansas. As it has been recognized repeatedly in federal cases, it is not an unreasonable extension of time to await a drug dog if reasonable suspicion has been developed and if there is no unnecessary delay in seeking the drug dog's presence to conduct the open air sniff. There is no evidence shown that the officer acted in a dilatory manner to secure the drug dog to the scene of the traffic stop other than Defendants contention that the mere fact that they were detained for over an hour was unreasonable and violated Rule 3.1. Arkansas has approved a thirty seven (37) minute detention while awaiting a drug dog to be summoned. See Omar v. State, 90 Ark.App. 436, 262 S.W.3d 195 (2007). . . . .
In this case, there was no consent to search but there was consent by the Defendant to extend his own detention until the drug dog arrived and conducted its "sniff" which the Court finds is a valid waiver of the fifteen (15) minute rule and the time it took to get the dog to the scene was reasonable under the circumstances.

         B. Special Plea of Double Jeopardy

         On October 31, 2014, Hoey's trial began, and a jury was selected and sworn. Hoey's counsel presented a motion to exclude evidence that had been provided the week of the trial. The motion was premised on Hoey's motion for discovery filed April 19, 2013, and which had been pending for more than a year. Alternatively, the motion sought a continuance. The trial court ruled that the motion was filed too late to be considered but allowed it to be proffered. Officer Pettit, the State's first witness, testified that he had prepared a report and had a copy of it with him. Hoey's counsel complained to the trial court that she had never received a copy of that report and argued that Hoey was entitled to have received it under the discovery motion filed in April 2013. The State responded that it had not received a copy of the report ...

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