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Rounds v. State

Court of Appeals of Arkansas, Division II

April 25, 2018

ERIC BENARD ROUNDS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION [NOS. 60CR-16-4452 & 60CR-13-1430] HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE

          Terrence Cain; and Thompson Law Firm, PLLC, by: Theodis N. Thompson, Jr., for appellant.

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

          DAVID M. GLOVER, Judge

         Eric Rounds appeals from the sentencing order entered by the Pulaski County Circuit Court after a conditional plea of guilty. He challenges the court's denial of his motion to suppress. We reverse and remand.

         On November 26, 2016, Rounds was stopped by Little Rock police officer, Sergeant Jeffrey Plunkett, and a firearm was found in Rounds's possession. He had a prior felony conviction from 2014 and was charged with unlawful possession of a firearm. Rounds sought to suppress the firearm, taking the position the stop was not justified, and therefore the firearm Sergeant Plunkett discovered during the search stemming from the stop should have been suppressed as the fruit of an unconstitutional warrantless stop. Following a hearing, the trial court denied Rounds's motion to suppress. He then entered a conditional plea of guilty on May 22, 2017, and this appeal followed.

         In reviewing the denial of a motion to suppress evidence, the appellate courts of our state conduct a de novo examination based on the totality of the circumstances. MacKintrush v. State, 2016 Ark. 14, 479 S.W.3d 14. We review findings of historical facts for clear error and determine whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. Id. A finding is clearly erroneous, even if there is evidence to support it, when after review of the entire evidence, we are left with a definite and firm conviction that the circuit court made a mistake. Id. We defer to the superiority of the circuit court to evaluate the credibility of the witnesses who testify at the suppression hearing. Id.

         It is without dispute that Sergeant Plunkett, who made the stop, did not stop Rounds based on any traffic violation. Rather, he stopped Rounds based on what Sergeant Plunkett was told by fellow Little Rock police officer Irving Jackman. Our review of the entire evidence convinces us the circuit court erred in concluding the stop of Rounds's vehicle was based on reasonable suspicion, and because the stop was not justified, the evidence obtained as a result of the stop should have been suppressed.

         At the suppression hearing, Officers Plunkett and Jackson testified. Officer Jackman testified first. He stated he had responded to a call on November 24, 2016, two days before the incident leading to Rounds's arrest. According to Officer Jackman, he heard shots on November 24 and responded to the area, which was known for its criminal activity and violence. Officer Jackman explained that when he made contact with Rounds on the 24th, Rounds informed him he had just been robbed. Officer Jackman testified that Rounds's personal items were on the ground; Rounds "had frantic breathing, and you could tell he had been in a high-stress situation"; he encouraged Rounds to report the incident; Rounds "advised it was fine"; and Rounds "did not necessarily say he would take care of it, would handle it, but [Rounds] did not want to make a report." Officer Jackman further testified that while he was talking to Rounds, "someone outside said he may be 'hot.'" Officer Jackman took those words to mean Rounds had an outstanding warrant, but because he was "the victim of this incident, it was not necessary to run him, to find out if he had a warrant. We try not to arrest victims of crime."

         Officer Jackman testified that two days later, on November 26, while still assigned to the Violent Crime Reduction Task Force, "[w]e were saturating the area for the influx of shootings happening in the city. . . . We were saturating the area in reference to a shots-fired call I believe, and once we got to the area I [saw] a black sedan, two-door Challenger, leaving the area. I was able to identify the driver." He explained that the driver was Rounds, who had been the victim of the November 24 robbery, "[a]nd then two days later [November 26] we responded to that area again in reference to some incidents that had been occurring throughout the city, and when I made it to that location, I [saw] Mr. Rounds's vehicle leaving the area." Officer Jackman then testified he "notified the squad that I was working on at that time that I had just [taken] a report with [Rounds] a couple days prior, just take precaution in case it was retaliation of some shots surrounding- somebody start shooting at him again, letting them know that he had just been shot at a few days prior." He stated that once someone is shot at, "most of the time a retaliation shooting is possible, " and he provided that information to Sergeant Plunkett (the officer who stopped Rounds).

         On cross-examination, Officer Jackman clarified his earlier testimony, explaining, "I got a call about shots being fired two days prior to your client being arrested. We [were] saturating the areas in reference to the shots-fired calls. That happened on November 24, 2016." Officer Jackman explained that shots-fired calls happen on a regular basis and are not abnormal. He further clarified that someone had yelled out Rounds "was hot"; that the somebody was another individual on the street; that he did not pay that much attention to the other person because he (Jackman) was talking to Rounds; that he was not interested in the warrant then because he was more interested in finding the suspect who had done the shooting; and that Rounds did not want to be a victim in a report, so no further investigation was made of the November 24 incident.

         Officer Jackman testified that when he passed Rounds in his vehicle on November 26, he remembered him from the November 24 incident, and he remembered an unidentified person had yelled Rounds was "hot." He explained that he informed the officers on the task-force-monitor channel that he (Jackman) was in the area; that he passed the vehicle of a person who had been robbed in that area two days earlier (Rounds); that he was going to continue to saturate the area; that someone had yelled the robbery victim (Rounds) was "hot, " and he might therefore have an active warrant; and that he notified the officers to take precaution because Rounds was leaving the area where he had been robbed two days before. Officer Jackman stated that according to Sergeant Plunkett, the sergeant stopped Rounds to investigate a warrant based on Jackman's call. Officer Jackman explained he was telling the other officers to take precaution because they were in the area where Rounds had been robbed, and Rounds was leaving the area where he had been the victim two days earlier, and the police got calls about shots fired all the time. He thought it was unusual that Rounds had been a victim in that same area two days before and was leaving the same area two days later. Officer Jackman acknowledged he did not know if Rounds had family in the area. He said he advised the officers to take precaution, and Sergeant Plunkett decided to pull Rounds over based on the information he had given them, i.e., that Rounds was leaving the location, had been robbed two days earlier in the same location, and refused to make a report because someone advised that he was "hot." Officer Jackman stated that the only reason Sergeant Plunkett stopped Rounds was because he (Jackman) had reported Rounds might have a warrant. It is undisputed that Officer Jackman never determined whether Rounds actually had a warrant on November 24 or at any time before November 26.

         Next, Sergeant Plunkett testified at the suppression hearing. He explained he was assigned to the Violent Criminal Apprehension Team on November 26, 2016; the team's duties included apprehending violent felons and responding to any violent-crime problems in the city; on the night in question they "were specifically assigned to target a few geographical areas based on the shots fired and the shootings that we had been having in the neighborhood"; there had been an increase in shootings in that area; and he was assigned to run a task force put together to suppress some of that violence.

         Sergeant Plunkett, who actually conducted the stop of Rounds's vehicle, testified that on November 26, he received "information from Officer Jackman with regard to Eric Rounds [and] [b]ased on that information [he] conducted a traffic stop on the black Dodge Charger." He explained that he activated his blue lights; the Charger pulled to a stop; and he illuminated the vehicle with his spotlight. Sergeant Plunkett further testified that Rounds, in fact, did not have an active warrant but that he "was at the scene ...


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