Enriquez v. State , 97 Ark. App. 62 ( 2006 )

Josephine Linker Hart, Judge.

The circuit court denied the motion of appellant, Anthony Manriquez Enriquez, to suppress marijuana seized from the trunk of a car driven by appellant. He then pleaded guilty to the crime of possession of marijuana with the intent to deliver, with his plea conditioned upon his right to appeal from the denial of his motion. On appeal, appellant argues that the circuit court erred in denying his motion to suppress the marijuana because the deputy lacked reasonable suspicion to detain appellant past the end of the traffic stop and conduct a canine sniff of the car. We reverse and remand.

On appeal, we conduct a de novo review of the circuit court’s denial of the motion to suppress evidence based on the totality of the circumstances, examining findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion, while giving due weight to inferences drawn by the circuit court. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). To conduct a canine sniff of a motorist’s vehicle after the legitimate purpose for the initial traffic stop has terminated, the officer must have developed reasonable suspicion to detain before the legitimate purpose ended. Id. Reasonable suspicion exists if, under the totality of the circumstances, the police have a specific, particularized, and articulable basis for concluding that the person may be involved in criminal activity. Id. In Sims, the Arkansas Supreme Court concluded that the legitimate purpose of the traffic stop ended when the officer handed Sims his license, registration, and a traffic warning.

At the suppression hearing, the State presented the testimony of former Crawford County Deputy Sheriff Jeff Smith and a videotape of Smith’s traffic stop of appellant that was made by a video recorder in Smith’s patrol car. Smith testified that while on duty on April 4, 2004, he saw a white Ford Taurus with a Nevada license plate following too closely to another vehicle. The videotape shows that Smith stopped the Taurus and made contact with appellant, who was the driver and sole occupant of the car. The videotape also shows that Smith asked for appellant’s driver’s license and vehicle registration. Smith then asked where appellant was going, and appellant said that he was going to New York City to visit his daughter and that he would be there for four or five days.

Smith testified that appellant provided him with a rental agreement for the car, which showed a rental date of March 11, 2004, and a return date of March 18, 2004, and that appellant told him that he had contacted the rental company and talked to a “Robert” and obtained an extension to April 2, 2004. Smith also testified that he obtained appellant’s Arizona driver’s license and was told by dispatch that appellant’s license was suspended. Smith testified that he told appellant of the suspension and issued him a warning for following too closely. He further testified that he did not issue a warning or citation for the suspended license.

On the videotape, appellant denied knowledge of the suspension, and when questioned by appellant, Smith was unable to identify the date of the suspension. Smith asked dispatch for the reason for the suspension, and dispatch replied, “Just says court action required.” Smith then specifically stated to appellant that he would not issue a citation for driving with a suspended license. Smith returned the materials to appellant and asked appellant if he had obtained an extension on the rental agreement. Appellant answered affirmatively, explaining that he had gotten an extension, stating, “That is the reason why I wrote Robert on there. 04/02/04,” and that he had rented the car three weeks earlier. Smith made no further inquiry about the car and then asked appellant where in New York City that his daughter lived. Appellant told him that she lived in Manhattan.

The videotape shows that Smith then stated that there were problems on the highway with transportation of narcotics. He asked if appellant had anything illegal in the car. Appellant stated that he did not, and Smith asked if appellant would consent to a search of the vehicle. Appellant refused. Immediately thereafter, Smith removed a dog from his patrol vehicle and worked the dog around the vehicle. He told appellant that he was going to look inside the car. Smith opened the driver’s side door and removed the keys. He used the keys to electronically open the trunk, where a blanket covered several large bundles of marijuana.

Smith testified that appellant appeared “nervous to a certain extent and very talkative.” Smith also stated that, when someone’s license is suspended, “we don’t allow them to drive off, we usually contact somebody or tow the vehicle,” and that he would not have allowed appellant to drive off with a suspended license but instead would have had the vehicle towed and assisted appellant in getting a ride. He also testified that when he made his initial contact with appellant, he noticed luggage in the back seat and trash and other items in the car, and he noted that the car had a “lived-in look.” He further testified that he had no report of the car being stolen.

Appellant does not challenge the traffic stop. Rather, he argues that Smith lacked reasonable suspicion to continue to detain appellant and conduct a canine sniff of his car after issuing a traffic warning. The State makes a number of arguments for affirmance of the circuit court’s denial of appellant’s motion to suppress. First, the State contends that appellant failed to establish that he had standing to challenge the search of the car. We conclude, however, that appellant, as the driver of the car and the person named in the rental agreement, had standing to challenge the search of the car. See Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993) (holding that a defendant has no standing to question the search of a vehicle owned by another person unless he can show that he gained possession from the owner or from someone who had authority to grant possession). Here, the rental agreement established standing.

The State also argues that because appellant’s license was suspended and Smith testified that he would not have allowed appellant to drive the vehicle, the legitimate purpose of the traffic stop had not ended when Smith searched appellant’s car. We note that Rule 12.6(b) of the Arkansas Rules of Criminal Procedure provides that “[a] vehicle impounded in consequence of an arrest, or retained in official custody for other good cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents.” Here, however, there was no arrest, and Smith informed appellant that he would not issue a citation. After excluding the possibility of arrest and after returning the materials to appellant, Smith began to question appellant about the possible presence of narcotics in his car. When appellant refused to consent to a search, Smith used his dog to conduct a canine sniff, which is indicative of an evidentiary search. It is apparent that Smith did not impound the car, and his actions as shown on the videotape belie his assertion at trial that he was not going to allow the vehicle to leave. Accordingly, we conclude that, as in Sims, the legitimate purpose of the traffic stop ended when Smith issued a warning for following too closely, announced that he was not issuing a citation for driving on a suspended license, and returned the materials to appellant without taking further action.

The State further contends that, even if the legitimate purpose of the stop had ended, Smith had reasonable suspicion to further detain appellant and determine the lawfulness of his conduct. The State notes that Smith testified that there was luggage in the back seat, that the car had a “lived-in” look, that appellant appeared “nervous to a certain extent and very talkative,” that appellant had a suspended driver’s license, and that appellant had the car for three weeks and was traveling from Nevada to New York with an expired agreement.

Mere nervousness, however, cannot constitute reasonable grounds for detention. Sims, supra. Moreover, we cannot conclude that a car that looks “lived in” constitutes grounds for reasonable suspicion, as there was testimony that appellant had the car for three weeks. See Meraz-Lopez v. State, 92 Ark. App. 157, 211 S.W.3d 564 (2005) (holding that the presence of scattered items in the front of the car does not provide reasonable suspicion). As for the suspended driver’s license, as noted above, Smith had already completed his investigation of it when he told appellant that he would not issue a citation. The suspended license could not again provide reasonable suspicion to detain appellant, as Sims indicates that the resolved grounds for detention cannot continue to serve as a basis for detention. As for appellant’s possession of the car for three weeks and traveling to New York City, we cannot say that this, as the State suggests, constitutes unusual travel plans.

The State notes Smith’s testimony that the rental agreement was extended to April 2, 2004, and citing Burks v. State, 362 Ark. 558, 210 S.W.3d 62 (2005), argues that Smith had a reasonable suspicion that appellant was misappropriating the rental car company’s property. In Burks, the defendant’s car rental agreement specified that the car was not to be driven outside of California and Arizona and was due to be returned the day before the traffic stop occurred. The Arkansas Supreme Court held that reasonable suspicion to detain existed because the facts suggested that the car had been stolen, as it not only was overdue, but also it was being driven far away from the area in which it was meant to be returned.

When testifying that the rental agreement was extended to April 2, 2004, Smith was merely recalling what he was told by appellant. The videotape reveals that Smith returned the materials and asked if appellant had obtained an extension, and appellant replied that he had and that was the reason he wrote “Robert” on the rental agreement. Appellant then says, “04/02/04,” but he does not indicate that this was the date the extension expired. Other than asking how long he had the car in his possession, Smith made no further inquiry about the car rental. Furthermore, there was no evidence indicating that the car could be driven only in certain areas, and Smith admitted that he did not have a report of the car being stolen. Under the totality of the circumstances, we cannot conclude that this evidence provided reasonable suspicion to detain.

Reversed and remanded.

Bird, Neal, Vaught, and Roaf, JJ., agree. Griffen, J., concurs. Pittman, C.J., and Glover and Crabtree, JJ., dissent.