FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-13-151]
HONORABLE KIRK DOUGLAS JOHNSON, JUDGE
Law Firn, P.L.L.C., by: Scott A. Scholl, for appellant.
Rutledge, Att'y Gen., by: Kristen C. Green, Ass't
Att'y Gen., for appellee.
J. GLADWIN, Judge
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.
Motion to Suppress
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.
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. 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. 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.
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.
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.
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.
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
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
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
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.
Special Plea of Double Jeopardy
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 ...