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Shay v. State

Court of Appeals of Arkansas, Divisions III, IV

February 7, 2018

MO SHAY, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

         APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT [NO. 36CR-16-196] HONORABLE BILL PEARSON, JUDGE

          The Law Offices of Paul Younger, PLLC, by: Paul Younger, for appellant.

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

          KENNETH S. HIXSON, Judge.

         Appellant Mo Shay was convicted by the trial court of possession of methamphetamine and was sentenced to six years' probation. On appeal, Mr. Shay argues that the trial court erred in denying his motion to suppress the methamphetamine because its discovery was the result of an illegal search and seizure. We agree that the trial court erred in denying appellant's motion to suppress, and we therefore reverse and remand.

         After Mr. Shay was charged with possession of methamphetamine, he filed a written motion to suppress the contraband. Thereafter, the trial court held a suppression hearing. Officer Kenneth Kennedy of the Clarksville Police Department was the only witness to testify at the suppression hearing. Officer Kennedy testified that he was patrolling Clarksville at around 5:00 a.m. when he observed a car parked at a city park that had been closed since 10:00 p.m. Officer Kennedy was returning to the park after making a drug arrest at the park an hour earlier. Officer Kennedy characterized the criminal activity in the park as "medium-high, " and stated that he routinely patrolled the area because of complaints from citizens and his previous after-hours encounters in the park.

         Officer Kennedy pulled in behind the parked car, but did not activate his blue lights. He shined a light inside the car and saw Mr. Shay sitting in the front passenger's seat and a female seated in the backseat on the driver's side. Officer Kennedy made contact with the individuals and asked for identification. Mr. Shay advised that he did not have his wallet or any identification, but both Mr. Shay and the female identified themselves to the officer. Officer Kennedy stated that he was familiar with Mr. Shay from previous encounters with him, and that he "ran their information" and confirmed the identity of both occupants.

         Officer Kennedy asked the female to exit the vehicle, which she did. Officer Kennedy advised the female that she could not drive the car because she did not have a driver's license, and she replied that she could walk home from that location.

         Officer Kennedy then turned his attention to Mr. Shay, who was still seated in the front passenger's seat. Officer Kennedy testified:

I asked him to exit the vehicle because of the way he was acting, fidgeting around with his pockets, I figured there may be something illegal. I asked him if he had any weapons or drugs. I asked because he kept reaching for his pockets and acting nervous. I asked him to step out of the vehicle and he immediately began grabbing for his pockets again, and I advised him to keep his hands up.
I then patted him down and was immediately able to feel in his front right pocket a wallet. He had previously told me he did not have identification. I then opened the wallet to see if there was any identification in it. Also, sometimes small packets of drugs are stored in wallets. Since he had previously denied having a wallet, I was suspicious that it might contain something illegal. I opened the wallet and in the first pleat of it found his identification. I couldn't read it because of the way the wallet surrounded it, so I slid it out to verify who he was and observed a small brown bag of methamphetamine [behind the identification card].

         On cross-examination, Officer Kennedy stated that Mr. Shay had "handed the wallet to me after I felt it in his pocket." Officer Kennedy was wearing a camera that night, and a video/audio recording of the incident was admitted into evidence.

         At the conclusion of the suppression hearing, Mr. Shay argued that the search was illegal because there was no reasonable suspicion that he was armed and dangerous when Officer Kennedy conducted the pat-down search. Mr. Shay also argued that, even if a pat-down for weapons was lawful, it was illegal for Officer Kennedy to look inside the wallet because there was no reasonable suspicion that the wallet contained a weapon or probable cause that the wallet contained drugs. The trial court verbally denied Mr. Shay's motion to suppress. After the motion to suppress was denied, the parties agreed to submit the case to the trial court for determination of guilt or innocence based on the testimony at the suppression hearing. The trial court then found Mr. Shay guilty of possession of methamphetamine.

         In this appeal, Mr. Shay argues that the trial court erred in denying his motion to suppress the methamphetamine seized by the police. The relevant provisions under the Arkansas Rules of Criminal Procedure are as follows. Rule 3.1 provides:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer's presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

         Rule 3.4 provides:

If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.

         Mr. Shay does not argue on appeal that the officer's detention of him pursuant to Rule 3.1 was unlawful. Rather, Mr. Shay contends that the search conducted by the officer under Rule 3.4 was unlawful because the officer lacked reasonable suspicion that he was armed and presently dangerous. Mr. Shay alternatively argues that, even if a pat-down search for weapons was permissible under Rule 3.4, the search of the contents of his wallet exceeded the scope of the search because the wallet did not pose a threat and the search was more extensive than was reasonably necessary to ensure the safety of the officer or others.

         Our standard of review for a suppression challenge requires us to conduct a de novo review based on the totality of the circumstances. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We review findings of historical facts for clear error and determine whether those facts give rise to reasonable ...


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