Jeremy Mickens v. State of Arkansas

Cite as 2020 Ark. App. 280
Reason: I attest to the accuracy
and integrity of this document
ARKANSAS COURT OF APPEALS
Date: 2021-06-16 09:51:18
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9.7.5 DIVISION III
No. CR-19-754

Opinion Delivered: April 29, 2020

JEREMY MICKENS
APPELLANT APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
V. [NO. 35CR-18-133]

STATE OF ARKANSAS HONORABLE JODI RAINES
APPELLEE DENNIS, JUDGE

AFFIRMED

WAYMOND M. BROWN, Judge

Appellant Jeremy Mickens entered a conditional plea of guilty to one count each of

simultaneous possession of drugs and firearm and possession of marijuana with the purpose

to deliver following the circuit court’s denial of his motion to suppress evidence. Appellant

contends that the circuit erred by denying his suppression motion and by admitting hearsay

testimony based on rumor into evidence at the suppression hearing. We find no error and

affirm.

At approximately 8:07 p.m. on February 15, 2018, appellant was stopped by Officer

Kevin Collins of the Pine Bluff Police Department due to his vehicle’s license plate light

being out.1 Officer Collins asked appellant for his license, insurance, and registration.

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Officer Collins was driving an unmarked vehicle along with Officer Tomeka
Oswalt.
Appellant handed Officer Collins an ID card and the vehicle registration. He declined

Officer Collins’s request to search the vehicle. Officer Collins subsequently went to his

vehicle to check ACIC/NCIC. He also contacted Detective Aaron Robertson with Vice

and Narcotics to bring his canine to the scene of the stop. Officer Collins was able to verify

that appellant had a proper driver’s license and that no warrants were out for appellant’s

arrest. He then made the decision to issue appellant a warning. As he was issuing the

warning ticket, Detective Robertson arrived with Zeke. Officer Collins then made

appellant turn the vehicle off and place his keys on the top of the roof. Zeke alerted on

appellant’s vehicle. After Zeke alerted, appellant informed the officers that there was a

firearm in the vehicle. A search of the vehicle turned up a semiautomatic handgun as well

as marijuana and Xanax. Appellant was arrested and charged with simultaneous possession

of drugs and firearm, possession of Xanax with purpose to deliver, and possession of

marijuana with purpose to deliver.

Appellant filed a motion to suppress on May 2, 2018, contending that he was illegally

detained and that the search of his vehicle violated his rights. Appellant’s suppression hearing

took place on June 10, 2019. Officer Collins testified that he legitimately stopped appellant’s

vehicle due to the license plate light being out. He stated that appellant was cooperative

but failed to have his driver’s license or proof of insurance. He said that he asked appellant

for permission to search the vehicle and appellant replied “no.” He testified that he

recognized appellant and that he heard rumors about appellant being involved with

controlled substances. At this point, appellant objected based on hearsay, but the court

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overruled the objection. Officer Collins stated that he ran appellant’s information through

ACIC/NCIC and discovered that appellant had a valid driver’s license and that there were

no outstanding warrants for him. He stated that as he waited for the information on

appellant, he contacted Detective Robertson to bring his drug dog. He said that it took

approximately ten minutes from the initiation of the stop to Detective Robertson’s arrival.

He testified that he was still in the process of writing the warning ticket when Detective

Robertson arrived.

On cross-examination, Officer Collins testified that the license plate light was his

only basis for the traffic stop. He stated that he requested the drug dog prior to receiving a

response from the check he ran on appellant. He said that Detective Robertson and the

dog arrived while he was writing the warning ticket. He testified that if “the drug dog

would not have arrived prior to [his] issuing the warning ticket, then [he] would have

proceeded to the next traffic stop.” He stated that it “normally takes two minutes to get

return information from ACIC/NCIC on a traffic stop.” He said that he had to wait on a

call back from 911 dispatch before he could return appellant’s information to him or issue a

citation. He stated that as soon as he was notified that the dog alerted, he removed appellant

from the vehicle and the vehicle was searched. Officer Collins testified that the dog’s alert

was the sole basis for the search.

Detective Robertson testified that he was called to a traffic stop that involved

appellant on February 15, 2018. He stated that he arrived at the scene about thirteen

minutes after receiving the call. He said that his dog alerted on appellant’s vehicle and that

a subsequent search turned up drugs and a firearm.

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The court took the matter under advisement and issued an order denying appellant’s

motion on June 12, 2019. After appellant asked for written findings of fact and conclusions,

the court issued them on June 27. The court made the following pertinent findings and

conclusions:

Officer Kevin Collins, Pine Bluff Police Department, initiated a traffic stop
on a vehicle being driven without a properly working license plate light.

The MECA record reflects that the traffic stop was initiated at 8:07 p.m.

Once advised as to the reason for the stop, the officer asked the driver to
produce his driver’s license, vehicle registration, and proof of insurance.

The defendant provided registration documents, but, did not provide a
driver’s license or proof of insurance. The defendant did provide an I.D. card.

The officer returned to his patrol car to run a check through ACIC.

The MECA record reflects that a vice and narcotics officer arrived with the
drug dog at 8:20 p.m.

No testimony was elicited that the results of the computer checks on the
defendant and the vehicle were completed prior to the arrival of the drug dog.

During the open-air sniff at a high bearing, the drug dog sat at the driver’s
side window which indicated he detected the scent of narcotics.

A search of the vehicle resulted in the seizure of marijuana, Xanax, and a
handgun.

CONC[L]USIONS

A canine sniff to the exterior of a vehicle is not a Fourth Amendment search.

Officer Collins had probable cause to believe that defendant’s vehicle violated
traffic laws and was justified in making the traffic stop.

Appellant entered into a conditional plea of guilty pursuant to Arkansas Rule of

Criminal Procedure 24.3(b), reserving his right to appeal the court’s denial of his motion to

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suppress the evidence. As a result of the plea, he was sentenced to an aggregate term of ten

years’ imprisonment, and the Xanax charge was nolle-prossed. The plea, along with the

sentencing order, was filed on July 9. Appellant filed a notice of appeal the same day. This

appeal followed.

In reviewing a trial court’s denial of a motion to suppress evidence, we conduct a de

novo review based on the totality of the circumstances, reviewing findings of historical facts

for clear error and determining whether those facts give rise to reasonable suspicion or

probable cause, giving due weight to the inferences drawn by the trial court. 2 A finding is

clearly erroneous when, even if there is evidence to support it, the appellate court, after

reviewing the entire evidence, is left with the definite and firm conviction that a mistake

has been made.3 We defer to the trial court’s superior position in determining the credibility

of the witnesses and resolving any conflicts in the testimony.4

A police officer may stop and detain a motorist when the officer has probable cause

to believe that a traffic offense has occurred.5 Probable cause exists when the facts and

circumstances within an officer’s knowledge are sufficient to permit a person of reasonable

caution to believe that an offense has been committed by the person suspected. 6 In assessing

2
Cagle v. State, 2019 Ark. App. 69, 571 S.W.3d 47.
3
Id.
4
Id.
5
Id.
6
Id.

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the existence of probable cause, our review is liberal rather than strict. 7 The relevant inquiry

is whether the officer had probable cause to believe that the defendant was committing a

traffic offense at the time of the initial stop, not whether the driver was actually guilty of a

traffic offense.8

Appellant concedes that his license plate light was out at the time his vehicle was

stopped. However, he contends that Officer Collins used the traffic stop as a pretext to

conduct an illegal search of his vehicle. This argument is without merit. Our supreme

court has held that in cases where the stop is pretextual, it will “not allow a police officer’s

ulterior motives to serve as the basis for holding a traffic stop unconstitutional so long as it

was a valid stop—meaning, the officer had the proper probable cause to make the traffic

stop.”9 Our common-law jurisprudence does not support invalidation of a search because

a valid traffic stop was made by a police officer who suspected other criminal activity. 10

Officer Collins implemented a valid traffic stop on appellant’s vehicle because it was being

operated while its license plate light was out, it makes no difference whether this stop was

pretextual.

Appellant further argues that Officer Collins prolonged the issuing of the warning

ticket so that the drug dog could arrive. Our supreme court has stated that a law

enforcement officer, as part of a valid traffic stop, may detain a traffic offender while

7
Id.
8
Id.
9
State v. Mancia-Sandoval, 2010 Ark. 134, at 6, 361 S.W.3d 835, 839.
10
State v. Harris, 372 Ark. 492, 277 S.W.3d 568 (2008).

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completing certain routine tasks, such as computerized checks of the vehicle’s registration

and the driver’s license and criminal history, and the writing up of a citation or warning. 11

During this process, the officer may ask the motorist routine questions, such as his or her

destination, the purpose of the trip, or whether the officer may search the vehicle, and the

officer may act on whatever information is volunteered. 12 However, after those routine

checks are completed, unless the officer has a reasonably articulable suspicion for believing

that criminal activity is afoot, continued detention of the driver can become unreasonable.13

In Sims, our supreme court held that the legitimate purpose of the traffic stop ended after

the officer handed back the driver’s license and registration along with a warning ticket.14

Here, Officer Collins testified that he was still in the process of writing appellant’s

warning ticket when Detective Robertson arrived with Zeke. Therefore, the legitimate

purpose of the stop had not ended when Zeke alerted on appellant’s vehicle. Once Zeke

alerted on the vehicle, there was no additional suspicion needed for the vehicle to be

searched.15 And to the extent that appellant attempts to argue that there was no reasonable

suspicion to allow the dog to sniff the exterior of the car, this argument also fails. According

to our case law, if police have probable cause to detain a vehicle, no separate suspicion is

11
Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004).
12
Id.
13
Id.
14
Id.
15
Harris, supra.

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required to conduct a canine sniff.16 The use of a drug dog during a traffic stop does not

constitute an illegal search under the federal constitution.17 Where there is no search within

the meaning of the Fourth Amendment, no reasonable suspicion is necessary to justify

having a dog smell an individual’s vehicle.18

Accordingly, Officer Collins had probable cause to stop and detain appellant’s

vehicle, and we hold that any pretext on the part of Officer Collins is irrelevant and that no

additional cause was needed to justify the canine sniff that took place prior to the conclusion

of the legitimate purpose of the stop. We also hold that the dog’s alert on appellant’s vehicle

provided the probable cause necessary to search appellant’s vehicle. Therefore, the court

did not err by denying appellant’s motion to suppress.

To the extent that appellant makes an argument about Arkansas Rule of Criminal

Procedure 16.2, that rule is not triggered based on the facts of this case.19 It only comes

16
Id.
17
Id.
18
Id.
19
Arkansas Rule of Criminal Procedure 16.2 provides that a party may object to the
use of any evidence on the grounds that it was illegally obtained. The rule further provides
that a motion to suppress evidence should be granted if the court finds that the violation
upon which it is based was substantial. Ark. R. Crim. P. 16.2(e). In determining whether a
violation is substantial, the court is to consider all the circumstances, including the following:

(i) the importance of the particular interest violated;

(ii) the extent of deviation from lawful conduct;

(iii) the extent to which the violation was willful;

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into play once the court finds that there has been a violation. Here, the court found no

such violation so there was no reason for the court to determine whether a violation was

substantial enough to justify suppression of the evidence.

Appellant argues that the circuit court abused its discretion by admitting hearsay

testimony based on rumor into evidence at the suppression hearing. We agree with the

State that this argument is not properly before us. Rulings on evidentiary claims are not

appealable under Rule 24.3(b).20

Affirmed.

GLADWIN and WHITEAKER, JJ., agree.

McKissic & Associates, PLLC, by: Gene E. McKissic, Sr., for appellant.

Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.

(iv) the extent to which privacy was invaded;

(v) the extent to which exclusion will tend to prevent violations of these rules;

(vi) whether, but for the violation, such evidence would have been discovered; and

(vii) the extent to which the violation prejudiced moving party’s ability to support
his motion, or to defend himself in the proceedings in which such evidence is sought
to be offered in evidence against him.
20
See Fisher v. State, 2013 Ark. App. 301, 427 S.W.3d 743.

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