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Taff v. State

Court of Appeals of Arkansas, Division IV

October 17, 2018

JAMIE TAFF APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE MONTGOMERY COUNTY CIRCUIT COURT [NO. 49CR-17-35] HONORABLE JERRY RYAN, JUDGE.

          James Law Firm, by: Michael Kiel Kaiser and William O. "Bill" James, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, JUDGE.

         Appellant Jamie Taff entered conditional guilty pleas pursuant to Arkansas Rule of Criminal Procedure 24.3(b)(i) (2017) to charges of simultaneous possession and possession of controlled substance schedules I, II with intent to deliver. He challenges the circuit court's denial of his motion to suppress. He argues that law enforcement's initial contact with him constituted an unconstitutional seizure and that all evidence acquired from the subsequent search of his person must be suppressed as fruit of the poisonous tree. We agree and reverse and remand.

         I. Facts

         On April 4, 2017, Chad Davis with the Montgomery County Sheriff's Office received a message from dispatch that Ricky Lee from the Joplin Store had called about a man, later identified as Taff, wearing a white shirt with a pistol stuck in his waistband, acting suspiciously, and going in and out of the store several times. Officer Davis and Deputy Willie Bartell responded to the call and headed west on Highway 270 toward the Joplin Store. Approximately halfway en route to the store, Officer Davis received another call from dispatch indicating that the man with the pistol was walking east on Highway 270. Two miles from the Joplin Store, the officers saw a man fitting the description provided walking east on Highway 270.

         Officer Davis activated his blue lights and made a U-turn toward the same side of the highway as Taff pursuant to standard procedure when talking to someone on the side of the road to avoid being hit by an oncoming vehicle. As Officer Davis was pulling up behind Taff, he observed what appeared to be the outline of a pistol in Taff's right pants pocket with his shirt covering the gun handle. When Officer Davis stopped behind Taff, Taff looked back, shook his head, took a couple of additional steps, and turned toward the officers. As Taff squared up to the officers' vehicle, he reached into his left pants pocket and then started to reach around to the right side. At that point, Officer Davis drew his service weapon and ordered Taff to put his hands in the air. Following this initial stop, officers searched Taff and located the contraband for which he was charged.[1]

         On April 10, 2017, Taff was charged with one count of simultaneous possession and one count of possession of controlled substance schedules I, II with intent to deliver. He filed a motion to suppress physical evidence on August 25, 2017, arguing that law enforcement officers had illegally detained him. A hearing was held on Taff's motion on October 24, 2017, during which Officer Davis testified that he had known Lee-who called in the report to dispatch-for fifteen years and that Lee was reliable and not easily alarmed. Officer Davis testified that he pulled over to make contact with Taff to "investigate suspicious behavior" and "to see what was going on" in order to "protect the community." Officer Davis acknowledged that he did not see Taff commit any traffic violations or criminal acts before initiating his blue lights.

         With respect to the stop, Officer Davis explained that when he pulled in behind Taff, Taff "didn't act like he wanted to be talked to or anything to that matter." Officer Davis acknowledged that the mere possession of a gun is not a crime, but he also testified that he was concerned that after "[s]eeing the outline of the pistol," he felt that Taff "could possibly pull his weapon and do harm to Deputy Bartell or him."

         On cross-examination, Officer Davis specifically denied that he was investigating a crime when he initiated his blue lights:

Counsel: When you activated your blue lights on 270 to stop Mr. Taff, were you investigating a crime?
Chad Davis: No, sir, it was a suspicious person, the way he was acting.

         Officer Davis confirmed that the information he received about Taff's behavior in the store did not involve the commission of any crime; any threats made by Taff; any theft of property by Taff; any brandishing of a weapon by Taff; any mention that Taff had any unlawful intent with the pistol; or any mention that Taff was getting physical with anyone. Further, he acknowledged that he later heard on the second call from dispatch that Taff had left the vicinity of the store and was walking along Highway 270 away from the store and toward the county line. Officer Davis ...


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