FROM THE JOHNSON COUNTY CIRCUIT COURT [NO. 36CR-16-196]
HONORABLE BILL PEARSON, JUDGE
Law Offices of Paul Younger, PLLC, by: Paul Younger, for
Rutledge, Att'y Gen., by: Rebecca Bailey Kane, Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge.
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
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.
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
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.
Kennedy then turned his attention to Mr. Shay, who was still
seated in the front passenger's seat. Officer Kennedy
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
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.
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.
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.
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.
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.
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