Wilson v. State

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                 SUPREME COURT OF ARKANSAS
                                        No.   CR-13-488

                                                   Opinion Delivered   January 16, 2014

                                                   APPEAL FROM THE MISSISSIPPI
RAYMOND WILSON                                     COUNTY CIRCUIT COURT,
                                APPELLANT          CHICKASAWBA DISTRICT
                                                   [NO. CR-2011-294]

V.                                                 HONORABLE CINDY THYER,
                                                   JUDGE

STATE OF ARKANSAS                                  AFFIRMED; ARKANSAS COURT OF
                                   APPELLEE        APPEALS OPINION VACATED.


                        JOSEPHINE LINKER HART, Associate Justice

       The circuit court denied Raymond Wilson’s motion to suppress evidence seized during

a traffic stop of the rental car that he was driving. Wilson entered a conditional guilty plea,

in accordance with Arkansas Rule of Criminal Procedure 24.3, to trafficking a controlled

substance—cocaine. He was sentenced to 120 months’ imprisonment in the Arkansas

Department of Correction followed by 120 months’ suspended imposition of sentence. The

Arkansas Court of Appeals affirmed the circuit court’s decision. Wilson v. State, 

. Wilson filed with this court a petition for review, which we granted. When we

grant a petition for review, we treat the appeal as if it had been originally filed in this court.

Jackson v. State, 

, ___ S.W.3d ____. Wilson argues that the circuit court erred

in failing to suppress evidence that was seized in violation of article 2, section 15 of the

Arkansas Constitution, the Fourth and Fourteenth Amendments to the United States
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Constitution, and Arkansas Rule of Criminal Procedure 3.1.

       The following facts were developed at a hearing on Wilson’s motion to suppress. A

Missouri law enforcement officer, Mark McClendon, placed a global-positioning-satellite

(GPS) tracking device on a rental car, a Dodge Charger, while it was parked at or next door

to Wilson’s home in Malden, Missouri. On the evening of October 2, 2011, Pam Buchanan,

a Missouri drug task-force officer, called her distant relative, Officer Blake Bristow of the

Jonesboro Police Department. Buchanan stated that her office, through controlled-narcotics

buys by confidential informants, had developed information that Wilson was selling crack

cocaine in Malden, Missouri. This information indicated that Wilson used rental cars to

transport his drugs. Buchanan informed Bristow that they were conducting electronic

monitoring on a vehicle being driven by Wilson. She expected that Wilson would be driving

the vehicle back from Texas, and it would probably be passing through Jonesboro. Buchanan

supplied Bristow with log-in information so that he could access the tracking information

from the GPS tracking device on the vehicle. Bristow was tracking the vehicle on October

2, 2011.

       Arkansas State Police Trooper Brandon Bennett was on patrol when he received a call

from Bristow. Bristow advised him that a vehicle possibly carrying “a load of dope” was on

Interstate 40 coming from the Fort Worth, Texas, area and that the vehicle was believed to

be headed to Jonesboro. Bristow gave Bennett a description of the vehicle and a tag number,

and Bristow continued to update Bennett about the location of the vehicle. Bristow advised

Bennett that Wilson did not turn toward Jonesboro off of Interstate 40 but had instead gone


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through West Memphis and was on Interstate 55 in Mississippi County, Arkansas. Bristow

instructed Bennett to look for the vehicle.

       Bennett was stationed in the median of Interstate 55 when he first observed the

vehicle. He followed and stopped the vehicle after observing the car traveling seventy-four

miles per hour in a seventy-mile-per-hour speed zone and crossing the fog line. Bennett

approached the driver of the vehicle, Wilson, asked for his driver’s license and insurance

information, and inquired about his itinerary. Wilson told Bennett that he was traveling from

the Fort Worth area after being there for one day to help a friend move and was heading back

to Malden, Missouri, where he lived. Bennett concluded that, given the distances traveled,

this explanation did not “add up.” According to Bennett, Wilson appeared nervous and

would not make eye contact. Bennett asked Wilson for the vehicle’s rental agreement. Wilson

provided more than one contract, and Bennett noted that Wilson’s name did not appear as

an authorized driver on any of the agreements. Wilson told him that his girlfriend had “signed

off on the rental agreement.”

       While waiting for information after calling in Wilson’s license, Bennett asked for and

received Wilson’s consent to search the vehicle. Bennett searched for approximately fifteen

minutes but did not find any contraband. He testified, however, that he did find “different

spots” where the vehicle’s carpet had been “purposely” pulled up. This seemed unusual to

him because the vehicle was a “fairly new vehicle.” Shortly after he completed his search of

the vehicle, Bennett learned that Wilson had a prior drug-related arrest.

       Prior to the stop, Bennett had tried to find a drug dog, and he contacted the


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Blytheville Police Department and spoke with off-duty police officer Steu Sigmon, who

agreed to assist, but stated that he would have to drive to Blytheville, pick up his police car,

load up the dog, and then drive to his location. After Bennett unsuccessfully tried to find an

on-duty officer, he again called Sigmon. According to Bennett, when Sigmon arrived, he

“deployed” the dog, and the dog alerted on the rear of the rented vehicle. A videotape of the

stop from Bennett’s patrol car showed that Bennett pulled Wilson over at 9:03 p.m. Bennett’s

unsuccessful search of the vehicle concluded at 9:20 p.m. The drug dog arrived at 9:43 p.m.

The search with the canine resulted in the discovery of cocaine underneath speakers after the

back seat had been pulled down. The cocaine was discovered at 9:59 p.m.

       Marcus McKinney, the regional manager for Enterprise Rental Car, also testified at the

suppression hearing, and he identified the vehicle Wilson was driving on the date of the arrest

as a rental from Enterprise that was rented by Billie Williams. McKinney testified that the

rental agreement specified that Williams was the only authorized driver. Among the

agreements was one for the period of September 20–27, 2011. According to McKinney, the

contract “must have been extended,” because the car was not returned until October 3, 2011.

       Also at the hearing, Billie Williams testified that on September 20, 2011, she rented

the vehicle to accommodate Wilson, who was the father of her eight-year-old child. After

renting the vehicle, she immediately turned it over to Wilson so that he could provide

transportation and care for their child while Williams was at work. According to Williams,

she rented the car for Wilson because a debit card or credit card was required, and Wilson did

not have one. Wilson was unemployed at the time and did not own a vehicle. Nonetheless,


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he agreed to, and did, reimburse her for renting the car.

       McClendon, the officer who placed the GPS tracking device on the vehicle, testified

at the hearing that it was his decision to place a GPS tracking device on the rental car that

Wilson was using without first obtaining a search warrant. According to McClendon, he was

guided by a “good rule of thumb” that he could attach the device on a vehicle as long as he

did not invade the curtilage. He testified that, at approximately 4:30 a.m. on September 22,

2011, he placed the battery-powered device on the undercarriage of the vehicle while it was

parked in the side yard of 601 Gertie in Malden, Missouri. It was his understanding that

Wilson resided at 603 Gertie.

       McClendon stated that he was familiar with the United States Supreme Court case of

United States v. Jones, ___ U.S. ___ , 

 (2012), holding that the government’s

placement of a GPS tracking device on a vehicle constituted a search, and he conceded that

it affected how law enforcement agencies utilized GPS devices. He noted, however, that he

installed the device well before the Court handed down Jones. McClendon asserted that he

did not invade what he understood to be the curtilage of Wilson’s residence. He described the

location of the vehicle to be on a “path . . . where cars had been on and off.” McClendon

stated that he understood curtilage to mean “the immediate area around the house—right up

against the house.”

       Wilson testified in his own defense and confirmed that he lived at 603 Gertie but

denied that he or anyone else had ever parked the Charger at 601 Gertie. He claimed that

while he was living at 603 Gertie, he parked the car at his home next to the porch area in the


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driveway.

       In support of his motion to suppress the cocaine, Wilson argued that placing a GPS

tracking device on the vehicle without a warrant and gathering data about the vehicle’s

movements was an unconstitutional search and that the evidence seized pursuant to the search

should be suppressed. Wilson further challenged the detention following a consensual but

unproductive search by Bennett. After arguments of counsel, the circuit court denied Wilson’s

motion to suppress.

       In its written ruling, the circuit court found that Wilson was the driver of a rental car

that had been rented for him by Williams. The court noted that, while it was undisputed that

Wilson reimbursed Williams for rental of the vehicle, Wilson was never designated as an

authorized additional driver as Wilson had not rented the vehicle in his name and Williams

did not pay the $10 authorized-driver fee for Wilson to drive the vehicle. Thus, Williams was

prohibited from granting permission for others to drive the vehicle, which “defeats the ability

of [Wilson] to claim he had a legitimate expectation of privacy in the vehicle.” Nonetheless,

the circuit court concluded that “if Ms. Williams had authority to grant permission under the

contract with Enterprise, she indeed granted permission to [Wilson].”

       The court further found that the length of Wilson’s detention after the initial stop was

not unreasonable in light of the totality of the circumstances. Also, the court found credible

McClendon’s testimony that the vehicle was located at 601 Gertie, the residence next door

to Wilson’s, when he placed the GPS tracking device on the vehicle. Although the court

acknowledged the United States Supreme Court’s decision in Jones, it concluded that the


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officers involved had reasonably relied on then existing precedent, that the good-faith

exception applied, and that the evidence collected through the use of the GPS tracking device

was not subject to the exclusionary rule. Following the court’s ruling, Wilson entered a

conditional guilty plea, and he now brings this appeal, arguing that the circuit court erred in

failing to exclude evidence that was seized in violation of article 2, section 15 of the Arkansas

Constitution, the Fourth and Fourteenth Amendments to the United States Constitution, and

Rule 3.1. of the Arkansas Rules of Criminal Procedure.

       On review of a circuit court’s denial of a motion to suppress evidence, we conduct an

independent inquiry based on the totality of the circumstances, evaluating findings of historical

facts for clear error. Villanueva v. State, 

, ___ S.W.3d ____. We give due weight

to inferences drawn by the circuit court, and we will reverse the circuit court only if the

ruling is clearly against the preponderance of the evidence. 

 We also defer to the circuit

court’s superior position to judge the credibility of witnesses. 

       We first consider whether Wilson has standing to challenge the search of the rented

vehicle and the seizure of the cocaine. Wilson asserts that he has standing to contest the

placement of the GPS tracking device on the car because Williams gave him permission to

use the vehicle. While conceding that “the contract prohibited other drivers than Ms.

Williams,” he argues that the contract between Williams and Enterprise did not control his

constitutionally granted rights under the Fourth Amendment.1

       1
         He analogizes the case before us to situations in which a user of an automobile is held
to be covered by the insured’s policy even when the user exceeds the scope of the permitted
use, citing Commercial Union Ins. Co. v. Johnson, 

, 

 (1988).
Likewise, he finds analogous Liberty Mutual Insurance Co. v. Thomas, 

, 951
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       In Jones, the United States Supreme Court held that “the Government’s installation of

a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s

movements constitutes a ‘search.’” ___ U.S. at ___, 

. Jones, however, did not

turn on the issue of standing. In Jones, even though the vehicle was registered in Jones’s wife’s

name, the government did not challenge Jones’s assertion that he was the exclusive driver.

Jones, ___ U.S. at ___,

 n.2.

       Before a defendant can challenge a search on Fourth Amendment grounds, he must

have standing, and it is the defendant’s burden of proving not only that the search of the car

he drove was illegal, but also that he had a legitimate expectation of privacy in the vehicle.

Littlepage v. State, 

, 

 (1993). The test for standing to assert one’s

Fourth Amendment rights requires that the driver at least show that he gained possession from

the owner or someone with authority to grant possession. State v. Barter, 

, 

 (1992).

       In Barter, the defendant was stopped while driving a rental car contracted to another

person. When the defendant failed to show that he lawfully possessed the car, this court held

that he failed to establish a legitimate expectation of privacy in the car searched by the police.

Similarly, in Fernandez v. State, 

, 

 (1990), we held that the

defendant failed to show that he had a legitimate expectation of privacy in a car when he



S.W.2d 564 (1997), where the Arkansas Court of Appeals held that a car lessor’s contract that
prohibited violation of the law while driving the vehicle did not cancel the lessor’s liability
insurance when the lessee had a drunk-driving accident. We do not find these cases
controlling, however, as they addressed only whether, as a matter of public policy, legally
mandated liability-insurance coverage could be avoided by contractual terms.
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could not show that either he or his passenger owned or lawfully possessed the car in which

the search was conducted. In Littlepage, the defendant failed to establish that he had a

legitimate expectation of privacy in the search automobile and lacked standing, as he was

driving a car that was rented to a third party who was not present at the time of the arrest and

who was the only authorized driver in the rental agreement.

       In this case, the renter of record, Williams, testified that she had rented the car for

Wilson, and while the original agreement had expired, Enterprise officials testified that it

“must have been renewed.” At the time of the traffic stop, however, Wilson had in his

possession a rental agreement that showed Williams as the only authorized driver of the rental

vehicle. Williams’s grant of permission to Wilson to use the rental car was not effective

because the contract did not allow for other drivers to use the vehicle. Thus, Wilson had no

legitimate expectation of privacy in the vehicle and no standing to challenge the search of the

rental car. Accordingly, we do not consider Wilson’s argument that planting the GPS device

was an unreasonable search under Jones. Likewise, we do not consider Wilson’s attempt to

distinguish the case before us from Davis v. United States, ___ U.S. ___, 

(2011), as no exception to the exclusionary rule is required.

       Wilson nevertheless asserts that a passenger of a vehicle rented in another’s name has

an independent right to challenge his detention. While Wilson does not assert that the traffic

stop was made without probable cause, he argues that he has standing to challenge his

continued detention while Bennett waited for the arrival of a drug dog and the subsequent

search following Bennett’s initial consensual search. He contends that his detention was illegal


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because he was detained for a lengthy period of time and because his detention was not

supported by reasonable suspicion.

       We conclude that Wilson has standing to challenge his own detention. In Stokes v.

State, 

, 

 (2009), the defendant was a passenger in a car that had

been rented in Arizona. Neither the driver nor the defendant was listed as an authorized

driver on the rental contract, and the contract specified that the vehicle could not be taken

outside of Arizona. The Stokes court stated as follows:

         In [State v.] Bowers, [

, 

 (1998),] we held that the appellant
who was a passenger in a vehicle had standing to contest the search of the vehicle after an
illegal stop. None of the parties contested the fact that the initial stop was illegal. We
distinguished Bowers from Littlepage and our other previous cases in that Bowers involved an
illegal stop, and the search for and seizure of the drugs directly followed the stop. We said that
the search on the heels of an illegal stop presents a different issue with respect to occupants
of a vehicle. 

 (citing Dixon v. State, [

, 

 (1997)]). “Similarly,
the occupants of a vehicle have standing to assert their own Fourth Amendment rights,
independent of the owner’s, such as challenge to the initial stop, or the seizure of their
person.” 

 (quoting Dixon).

Id. at 400, 

. Thus, we conclude that Wilson has standing to contest the

seizure of his person pursuant to the traffic stop.

       In asserting that his continued detention following Bennett’s initial search was illegal,

Wilson argues that Bennett had already completed the “routine tasks” associated with the

traffic stop. In support of his argument, he notes that Bennett testified that if he had intended

only to issue a ticket for the traffic violations, the stop would have lasted just twenty minutes.

While acknowledging that Bennett testified that his knowledge of Wilson’s suspected “drug

activities” caused him to doubt Wilson’s explanation for traveling to Texas for such a short

stay, and that Wilson appeared “nervous,” Wilson argues that these factors did not justify

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continuing to detain him until the drug dog arrived. Thus, he asserts that his continued

detention was unreasonable and violated his constitutional rights under the Fourth and

Fourteenth Amendments to the United States Constitution, article 2, section 15 under the

Arkansas Constitution, and Arkansas Rule of Criminal Procedure 3.1.

       The question squarely presented is whether Bennett could properly detain Wilson after

completion of the initial search. Rule 3.1 of the Arkansas Rules of Criminal Procedure

permits a law enforcement officer to stop and detain any person who he reasonably suspects

is committing a felony if such action is reasonably necessary either to obtain or verify the

identification of the person or to determine the lawfulness of his conduct. Rule 3.1 further

provides that 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.” During a valid traffic stop, an officer may

ask basic questions about a motorist’s destination and the purpose of his trip, and may also ask

for permission to search the motorist’s vehicle. Yarbrough v. State, 

, 

 (2007).

       In Menne v. State, 

, 

, we concluded that reasonable

suspicion to justify continued detention existed where: (1) during a routine background

check, the officer learned of the defendant’s arrest history; (2) one month prior, the

defendant’s truck had been stopped and the defendant’s passenger was arrested for possession

of marijuana; (3) the officer had information that the defendant was suspected of drug dealing;

(4) the defendant appeared “nervous”; and (5) the traffic stop and detention occurred around


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11 p.m. In United States v. Bloomfield, 

 (8th Cir. 1994), the Eighth Circuit

concluded that a one-hour wait for a drug dog was not unreasonable because the officer acted

diligently in securing the closest available drug dog.

       Here, Bennett had been advised that Wilson was involved in the drug trade and

trafficked in controlled substances. He noted that when Wilson was initially stopped, he was

nervous and would not make eye contact. Wilson was driving a rental car for which he was

not an authorized driver. Wilson gave an explanation of his trip to Texas that did not seem

rational. During the initial consensual search, Bennett discovered that the carpet in the rental

car had been pulled back purposely, which he concluded was odd for a fairly new vehicle.

Further, shortly after completing the initial search, Bennett learned that Wilson had a prior

drug-related arrest.2 Given these facts, we hold that, during the initial detention, Bennett

developed sufficient information to justify Wilson’s continued detention. Furthermore, the

canine arrived less than twenty-three minutes after Bennett had concluded his initial search,

and Bennett made diligent efforts to secure a drug dog. Under these circumstances, it was

reasonable for Bennett to await the arrival of a drug dog so that Bennett could establish the

legality of Wilson’s conduct, and we hold that this brief delay was reasonable. Accordingly,

we conclude that the circuit court properly denied Wilson’s motion suppress the evidence and

       2
        Neither Wilson nor the State addresses whether Wilson revoked his consent to search
the vehicle following the initial search. There is no requirement that law enforcement officers
advise him that consent may be withheld. Grant v. State, 

, 

 (1979).
A search cannot exceed, in duration or physical scope, the limits of the consent given. Ark.
R. Crim. P. 11.3 (2013). We note that Wilson could have withdrawn his consent or limited
the search. Ark. R. Crim. P. 11.5 (2013). The burden is on the State to prove by clear and
positive evidence that consent to a search was freely and voluntarily given. Ark. R. Crim. P.
11.1 (2013).
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affirm.

          Affirmed.

          CORBIN and GOODSON, JJ., concur.

          COURTNEY HUDSON GOODSON, Justice, concurring. I concur with the

majority’s decision to affirm this case on the basis that Wilson lacked standing to challenge the

search of the rental car and that his continued detention after the initial traffic stop was

reasonable. I write separately to emphasize that United States v. Jones, 

 (2012),

will, in my view, impact this court’s Fourth Amendment jurisprudence in the future as well

as to underscore the factors supporting the majority’s conclusion concerning the

reasonableness of Wilson’s continued detention after the initial traffic stop.

          In Jones, the Supreme Court of the United States held that the Government’s

installation of a GPS device on a target’s vehicle, and its use of that device to monitor the

vehicle’s movements, constitutes a “search.” As the Court noted, the use of a GPS device can

generate incredibly detailed information about a vehicle’s location.1 The Court specifically

stated that by placing the GPS device on the respondent’s car, the Government physically

occupied private property for the purpose of obtaining information. Jones, 

.

In the present case, there is no doubt that law enforcement officers physically occupied private

property for the purpose of obtaining information by placing a GPS device on Wilson’s rental

car. To be clear: The majority opinion does not, in contravention of Jones, hold that the

          1
        In this regard, the Court noted that “[b]y means of signals from multiple satellites, the
device established the vehicle's location within 50 to 100 feet, and communicated that
location by cellular phone to a Government computer. It relayed more than 2,000 pages of
data over the 4–week period.” Jones, 

.
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Fourth Amendment permits the attachment of GPS devices to rental cars under any

circumstances. Instead, the majority correctly holds that Jones does not control in this

particular case because of the threshold issue of standing.

       As a preliminary matter, an appellant must have standing to assert Fourth Amendment

rights because those rights are personal in nature. State v. Bowers, 

, 

 (1998). Whether an appellant has standing depends on whether he

manifested a subjective expectation of privacy in the area searched and whether society is

prepared to recognize that expectation as reasonable. Stokes v. State, 

, 

 (2009). The Fourth Amendment provides, in relevant part, that the right

of the people to be secure in their persons, houses, papers, and effects against unreasonable

searches and seizures, shall not be violated. Jones, 

. It is beyond dispute that

a vehicle is an effect as that term is used in the Fourth Amendment. 

 However, this court

has specifically held that the driver of a rental car must show that he gained possession from

the owner or someone with authority to grant possession in order to have standing to assert

his Fourth Amendment rights. Littlepage v. State, 

, 

 (1993).

       The respondent in Jones was not the registered owner of the vehicle at issue, his wife

was. In reaching its decision, the United States Court of Appeals for the District of Columbia

held that the vehicle’s registration did not affect Jones’s ability to make a Fourth Amendment

objection. However, upon review, the Court explicitly stated that it did not consider the

Fourth Amendment significance of Jones’s status because the Government did not challenge

the lower court’s determination. The Court indicated that Jones had “at least the property


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rights of a bailee.” Jones, 

. Contrasting that with the present case, Wilson

obtained the rental vehicle from Williams without the knowledge or consent of the owner,

Enterprise. Thus, while Wilson may have satisfied the first prong of the standing inquiry, the

fact that he gained possession from someone other than the owner diminishes the

reasonableness of his expectation of privacy. As a result, Wilson fails to satisfy the second

prong.

         While Wilson does not have standing to challenge the search of the rental vehicle

under these circumstances, the majority correctly holds that, just like any other occupant of

a vehicle, Wilson has standing to assert his own Fourth Amendment rights, including a

challenge to the initial stop or seizure of his person. State v. Bowers, 

, 

 (1998); Stokes, 

, 

. However in this

instance, Wilson does not contest the legality of his initial stop. Rather, he does challenge

whether Officer Bennett developed a reasonable suspicion sufficient to continue his detention

beyond the initial stop and search of the vehicle.

         As part of a valid traffic stop, an officer may conduct routine tasks such as making

computerized checks of the vehicle’s registration and the driver’s license and criminal history.

If, before the legitimate purpose of the traffic stop has ended, the officer develops a reasonable,

articulable suspicion that the person is committing, has committed, or is about to commit a

felony, the officer may further detain the person if such action is reasonably necessary to

determine the lawfulness of his conduct. Sims v. State, 

, 512–13, 

 (2004) (citing Ark. R. Crim. P. 3.1). A reasonable suspicion requires circumstances


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that, while not sufficient to give rise to probable cause, indicate more than a simple hunch or

purely conjectural suspicion. Id. at 513, 

 (citing Ark. R. Crim. P. 2.1).

The determination of whether an officer has reasonable suspicion is based on an examination

of the totality of the circumstances. Davis v. State, 

, 

(2003). Arkansas Code Annotated section 16-81-203 specifically mentions the demeanor of

the suspect, knowledge of the suspect’s background and character, time of night, and

information received from third parties as factors to be considered by law enforcement officers

to determine grounds for reasonable suspicion. 

(1), (3), (6), (9)

(Repl.2005). There is no requirement under the statute that a police officer need to have

personally observed any or all of these factors. Menne v. State, 

, 

.

       After initiating a valid traffic stop, Bennett asked for permission to search the rental car

Wilson was driving, and Wilson gave consent. During the search, Bennett noted that there

were various spots in the car where the carpet appeared to have been purposely pulled back.

In addition, he was aware that Missouri law enforcement officers were investigating Wilson

for drug trafficking and that Wilson was driving a rental car for which he was not an

authorized driver and for which the rental contract had expired five days prior. Bennett also

testified that Wilson appeared nervous and would not make eye contact. The circuit court

correctly concluded that the information known by Bennett constituted reasonable suspicion

to detain Wilson following the initial stop.

       Under Arkansas Rule of Criminal Procedure 3.1, a detention may last for fifteen

minutes or as long as is reasonable under the circumstances. The fifteen-minute time

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constraint under Rule 3.1 does not begin to run until after the officer has completed the

routine tasks associated with a traffic stop. Menne, 

, 

.

The genesis for Rule 3.1 is the holding of Terry v. Ohio, 

 (1968), that a police

officer can detain a person without violating the Fourth Amendment if the officer has a

reasonable suspicion that criminal activity may be afoot. Laime v. State, 

, 

 (2001). In assessing whether a detention is too long in duration to be justified

as an investigative stop, it is appropriate to examine whether police diligently pursued a means

of investigation that was likely to confirm or dispel their suspicions quickly, during which

time it was necessary to detain the defendant. United States v. Sharpe, 

(1985). The question is not simply whether some other alternative was available, but whether

the police acted unreasonably in failing to recognize or to pursue it. 

, 

. Courts must “consider the law enforcement purposes to be served by the stop as well

as the time reasonably needed to effectuate those purposes.” United States v. Bloomfield, 

 (8th Cir. 1994) (quoting Sharpe, 

). When police need the

assistance of a drug dog in roadside Terry stops, it will in general take time to obtain one; local

government police forces and the state highway patrol cannot be expected to have drug dogs

immediately available to all officers in the field at all times. 

       In reviewing the circumstances in this case, the majority correctly affirms the circuit

court’s determination that Bennett acted diligently in pursuing a means of investigation that

was likely to confirm or dispel his suspicions quickly and that he did not unreasonably detain

Wilson while awaiting the arrival of a canine. According to Bennett’s testimony, he initiated


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the traffic stop of Wilson at 9:03:32 p.m. Bennett testified that he had run Wilson’s driver’s

license, checked ACIC/NCIC, discussed the rental agreement with Wilson, and completed

his first search by 9:20:39 p.m., approximately seventeen minutes after the stop was initiated.

The canine unit arrived at 9:43 p.m., approximately twenty-three minutes after Bennett had

completed the routine tasks associated with the traffic stop.2 Moreover, Bennett testified that

he actually began contacting canine units before stopping Wilson in an effort to have a dog

immediately available. Under these circumstances, it cannot be said that a twenty-three-

minute detention was unreasonable.

       CORBIN, J., joins

       John H. Bradley, Chief Public Defender, for appellant.

       Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.




       2
        The fifteen-minute time constraint under Rule 3.1 does not begin running until after
the routine tasks associated with a traffic stop are completed. Menne, 

 at 7–8, 

. Although the circuit court correctly concluded that Wilson was not
unreasonably detained, the circuit court incorrectly calculated the time as a forty-minute
detention starting when Bennett initiated the traffic stop.
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