DONALD L. CORBIN, Associate Justice
Appellant Ronald Tywan Jackson appeals the order of the Lonoke County Circuit Court convicting him of possession of marijuana with intent to deliver and sentencing him to a term of five years' imprisonment in the Arkansas Department of Correction. On appeal, he argues that the circuit court erred in denying his motion to suppress (1) evidence seized pursuant to an illegal detention, (2) evidence where the warrantless search of his vehicle was not reasonable, and (3) the custodial statement that violated his Miranda rights and the fruit-of-the-poisonous-tree doctrine. We affirm.
The record reflects the following facts. On October 26, 2010, at approximately 3:39 p.m., Corporal Trenton Behnke of the Arkansas State Police stopped a pickup truck traveling eastbound on Interstate 40. According to Corporal Behnke, he stopped the vehicle because of an "[i]mproper lane change, cutting in front of a tractor trailer, and following too close." Leonard Maysonet was driving the vehicle, Jackson was the front-seat passenger, and John Fykes was a rear-seat passenger. Upon approaching the vehicle, Corporal Behnke did not notice anything in the bed of the truck but saw fast-food wrappers and a small suitcase in the backseat. Corporal Behnke requested and received Maysonet's identification and the vehicle's rental agreement that showed Jackson as the person who had rented the truck. According to Corporal Behnke, the rental agreement stated that Jackson had rented the truck in Tennessee on October 22, 2010, at approximately 9:01 a.m. and that the vehicle was due to be returned at 8:00 a.m. on October 25, 2010, the day before the traffic stop.
Corporal Behnke questioned Maysonet about his travels, and Maysonet told the officer that he had been to Dallas, Texas, to visit his cousin for a few days. Corporal Behnke then checked the vehicle's VIN sticker and federal VIN plate, and while doing so, noticed a large road atlas, which he thought was suspicious. Then, the officer asked Jackson for his driver's license and asked him about his travels. Jackson told the officer that the men had been to Dallas, Texas, "to see their girls" and once they arrived in Dallas, they went their separate ways. After backup arrived, Corporal Behnke deployed his dog, K-9 Major, around the truck. Based on the dog's alert, Corporal Behnke then searched the vehicle and discovered four or five Ziplock bags of a green, leafy-vegetable matter, which he determined to be marijuana, inside the one suitcase in the truck.
Jackson was arrested and charged with one count of possession of marijuana with intent to deliver. He filed a motion to suppress the evidence and his roadside and custodial statements, asserting that the officer had conducted a warrantless and unreasonable search and seizure of the vehicle in violation of his rights under the Arkansas Rules of Criminal Procedure, as well as the Arkansas and United States Constitutions.
A hearing on the suppression motion was held on July 14, 2011. Therein, Corporal Behnke testified about his stop and subsequent search of the vehicle rented to Jackson. He stated that after pulling the truck over, he first asked for Maysonet's license and the rental agreement and then later requested Jackson's driver's license, as he was the renter of the truck. Corporal Behnke explained that while waiting on the return from the Arkansas Crime Information Center ("ACIC") and after talking with Maysonet and Jackson some more, he became suspicious that they might be transporting narcotics. He also found it odd that when he asked them questions, he did not get immediate responses. Corporal Behnke asked Jackson for permission to search the vehicle, and Jackson said, "[N]o." Corporal Behnke told Jackson he had an officer on the way to assist him and once he arrived, Behnke was going to deploy his dog, K-9 Major, around the vehicle. According to Corporal Behnke, he first allowed the dog to conduct a free-air sniff by letting him run around the vehicle by himself. This was followed by a detailed sniff where the officer presented different areas outside the vehicle. Corporal Behnke testified that K-9 Major's behavior constituted a profound alert, which meant that he was dealing with an odor of narcotics. Corporal Behnke then reported to Jackson that his dog alerted to the odor of narcotics in the vehicle. Jackson told the officer that his girl had smoked marijuana in the truck the day before, and Corporal Behnke advised Jackson that he was going to search the vehicle. Jackson then admitted there were four or five pounds of marijuana in the truck. Corporal Behnke testified that after Jackson was transported to the Lonoke County Sheriff's Office, he was advised of his Miranda rights, but refused to give a statement, saying, "There's nothing for me to say because you already have my weed."
At the conclusion of the suppression hearing, the circuit court ruled that it would suppress the roadside statement by Jackson, wherein he admitted that there were four or five pounds of marijuana in the car. But, the circuit court denied the motion to suppress the evidence and the custodial statement. The circuit court specifically found that Corporal Behnke had not completed the purpose of the stop at the time he deployed the dog, as he was waiting on a return from ACIC on one of the men, and that K-9 Major was reliable and alerted, thereby giving Corporal Behnke probable cause to search the vehicle. Jackson was then tried before the bench on July 14, 2011, found guilty and sentenced as previously set forth.
Jackson appealed his conviction and sentence to the Arkansas Court of Appeals, and the court of appeals affirmed. Jackson v. State, 2012 Ark. App. 508. Jackson petitioned this court for review, and we granted that petition on November 8, 2012. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. See Chambers v. State, 2012 Ark. 407, ___ S.W.3d ___. We turn now to the issues raised by Jackson.
As his first point on appeal, Jackson argues that the circuit court erred in denying his motion to suppress evidence seized in violation of Rule 3.1 of the Arkansas Rules of Criminal Procedure, as well as the Arkansas and United States Constitutions.[1] While Jackson concedes that the officer's stop of the truck was valid, he asserts that Corporal Behnke illegally detained him after the purpose of the stop had been completed and that the officer lacked reasonable suspicion to continue the investigation. The State counters that because the purpose of the traffic stop had not been completed at the time that Corporal Behnke deployed K-9 Major, the circuit court's denial of the motion to suppress was correct and should be affirmed by this court. Alternatively, the State argues that any further detention of Jackson was supported by reasonable suspicion that Jackson was involved in criminal activity and, thus, the circuit court's denial of the motion to suppress should be affirmed.
In reviewing a circuit 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 inferences drawn by the circuit court and proper deference to the circuit court's findings. E.g., Menne v. State, 2012 Ark. 37, 386 S.W.3d 451. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. E.g., Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. We defer to the superiority of the circuit court to evaluate the credibility of witnesses who testify at a suppression hearing. E.g., Cockrell v. State, 2010 Ark. 258, 370 S.W.3d 197. We reverse only if the circuit court's ruling is clearly against the preponderance of the evidence. Ritter v. State, 2011 Ark. 427, 385 S.W.3d 740.
This court has held that a law-enforcement officer, as part of a valid traffic stop, may detain a traffic offender while 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. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). During this process, the officer may ask the motorist routine questions such as his destination, the purpose of the trip, or whether the officer may search the vehicle, and he may act on whatever information is volunteered. Id. After these routine checks are completed, continued detention of the driver can become unreasonable, unless the officer has a reasonably articulable suspicion for believing that criminal activity is afoot. Id.
We are called upon in this case to review the circuit court's finding that the traffic stop at issue here had not been completed at the time Corporal Behnke deployed K-9 Major. Jackson acknowledges that there is case law suggesting that a stop is not completed until the driver's license and any accompanying paperwork is returned, which is precisely what we recently stated in Menne, 2012 Ark. 37, 386 S.W.3d 451. But, according to Jackson, we have not established a bright-line rule that a traffic stop cannot be completed before that time.
While we may not have a bright-line rule for when a stop is legitimately completed, our case law has consistently held that a stop is not concluded when the officer has not returned the license, paperwork, or ticket. In Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007), we noted that during the course of this encounter, the police officer determined that he was going to give the appellant a warning for the traffic violation; but, before doing so, he asked the appellant for his consent to search the vehicle. The court specifically noted that at the time the officer received consent to search, the officer had neither returned the appellant's identification papers to him, nor given him a copy of the warning. Ultimately, the court concluded that the officer's request for consent to search after he had determined he was going to write a warning was appropriate when he had not yet returned the driver's papers or issued the warning. Id.; see also Sims, 356 Ark. 507, 157 S.W.3d 530 (holding that the legitimate purpose of the traffic stop has ended after the officer hands back the driver's license and registration, along with a warning ticket).
In this case, Jackson does not challenge and, in fact, concedes that Corporal Behnke had probable cause to initiate the traffic stop. He argues that the ensuing detention was illegal because the purpose of the stop had been completed before the officer deployed K-9 Major. We disagree. At the suppression hearing, Corporal Behnke testified that after running the driver's licenses of both Jackson and Maysonet and checking the vehicle's VIN number, he began writing a warning ticket that he planned to issue unless the check of their licenses revealed any warrants. According to Corporal Behnke, he was still waiting for a return of criminal-history checks from ACIC for one of the men at the time he deployed K-9 Major. Moreover, he had not delivered a warning citation to the driver, nor had Maysonet signed the warning. Under the facts of this case and based on this court's precedent, we cannot say that the circuit court erred in denying the motion to suppress after finding that the purpose of the stop had not been completed at the time K-9 Major was deployed. Accordingly, because the initial purpose of the traffic stop was ongoing, there was no additional reasonable suspicion required to deploy the canine.
We next address Jackson's argument that the circuit court erred in denying his motion to suppress the marijuana because the warrantless search of the vehicle was not reasonable. Specifically, Jackson argues that the factors noted by Corporal Behnke and the alert, without an indication, by K-9 Major were insufficient to establish probable cause to search the vehicle. The State asserts that we should affirm the circuit court's denial of the motion to suppress the marijuana because the positive canine alert by K-9 Major, whose reliability was established by the State, was sufficient to establish probable cause.
The Fourth Amendment to the United States Constitution states as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In general, a search is considered invalid absent a warrant based on probable cause to search. However, the United States Supreme Court first established the "automobile exception" to the warrant requirement in Carroll v. United States, 267 U.S. 132 (1925), recognizing that the mobile nature of automobiles justifies a search, based on probable cause, even when a warrant has not yet been obtained.
Guidelines for warrantless searches of vehicles are set forth in Rule 14.1 of the Arkansas Rules of Criminal Procedure, which provides in relevant part that a police officer
who has reasonable cause to believe that a moving . . . vehicle . . . contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:
(i) on a public way.
Reasonable cause, as required by this rule, exists when officers have trustworthy information which rises to more than mere suspicion that the vehicle contains evidence subject to seizure and a person of reasonable caution would be justified in believing an offense has been committed or is being committed. E.g., Reyes v. State, 329 Ark. 539, 954 S.W.2d 199 (1997). Here, we are called upon to review whether a positive alert by a canine constitutes sufficient probable cause to search a vehicle.
This court has been presented before with the issue of whether a positive alert from a canine sniff, standing alone, constitutes probable cause to conduct a warrantless search of a vehicle, and we said it does. State v. Thompson, 2010 Ark. 294, 377 S.W.3d 207.[2] There, this court held that where a canine gave a positive alert, there was probable cause for an officer to search a vehicle. In that case, the officer testified as to the dog's reliability and confirmed that his training records had been maintained. Id. This court in deciding Thompson relied on a decision by the Eighth Circuit Court of Appeals in United States v. Sundby, 186 F.3d 873 (8th Cir. 1999). There, the appeals court held as follows:
A dog's positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable. To establish the dog's reliability, the affidavit need only state the dog has been trained and certified to detect drugs. An affidavit need not give a detailed account of the dog's track record or education.
Id. at 876 (citations omitted). Notably, there was no challenge to the canine's reliability in either Thompson or Sundby.
Since those cases, however, the United States Supreme Court has addressed the issue of a drug-dog's reliability in a case challenging whether a drug-dog's alert provided sufficient probable cause to conduct a search of the respondent's vehicle. In Florida v. Harris, ___ U.S. ___, 133 S. Ct. 1050 (2013), a unanimous Court held that where training records established the canine's reliability in detecting drugs, and the respondent failed to undermine that showing, the trial court correctly ruled that an officer had probable cause to search the respondent's vehicle. In so ruling, the Supreme Court took issue with the Florida Supreme Court's ruling that "created a strict evidentiary checklist, whose every item the State must tick off" in direct contravention to the established standard of considering probable cause under the totality of the circumstances. Id. at ___, 133 S. Ct. at 1056 (footnote omitted). The Court reasoned:
[E]vidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs. After all, law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources.
Id. at ___, 133 S. Ct. 1057.
Remaining mindful of the Supreme Court's holding in Harris, we cannot say that there are any specific evidentiary items that will demonstrate, or necessarily refute, a drug dog's reliability. As with other issues that arise when one seeks to suppress evidence from a search and seizure, it is the circuit court that will be the ultimate arbiter of credibility. E.g., Cockrell, 2010 Ark. 258, 370 S.W.3d 197.
Here, in arguing that K-9 Major was not reliable, Jackson points to testimony calling into question the canine's track record, including the fact that K-9 Major, in 2011, alerted on vehicles with a no-find at a rate of fourteen percent. According to Jackson, this percentage is not reliable enough to establish probable cause, and when considered with the fact that the dog did not give a final indication, it was error for the circuit court to deem the dog reliable when determining whether probable cause existed. We disagree.
Corporal Behnke testified that K-9 Major is trained to detect marijuana, cocaine, heroin, methamphetamine, and ecstasy. He explained that he and K-9 Major were trained by Arkansas State Police Canine Coordinator, Roby Rhoads. There were also three certifications related to Corporal Behnke's and K-9 Major's training introduced into evidence, including completion of the PSP-1, Police Dog Critical Skills Test; and the Narcotics Detector Dog Team PSP-2, Police Scenting Dog Test. Corporal Behnke explained that the PSP-2 is the standard used by the Arkansas State Police and was developed by behaviorists and other dog trainers, with the consultation of the German police. Corporal Behnke also stated that he and K-9 Major conduct training throughout the year to make sure they stay proficient. Although Jackson put forth some evidence regarding false alerts by K-9 Major, the circuit court, after hearing testimony about Corporal Behnke and K-9 Major's training, ruled the dog was reliable. In light of the ruling in Harris, ___ U.S. ___, 133 S. Ct. 1050, we cannot say this was clearly erroneous.
We also cannot say that the circuit court erred in finding that Corporal Behnke had probable cause to search the vehicle based on the alert by K-9 Major. Corporal Behnke testified that when dealing with K-9 Major there can be an alert, a profound alert, or an indication. He explained that an alert is a change in behavior that the handler knows and can recognize upon his own canine. He also testified that a profound alert is something that any human being, by sitting there and watching him, can understand that the dog has had a significant change in behavior. Finally, an indication, he explained, will either be a sit, stand, or lay. In this instance, Corporal Behnke stated that K-9 Major demonstrated a profound alert. More specifically, he stated that after conducting the free-air sniff, K-9 Major began pulling him toward the front-passenger side of the vehicle, to the point the dog was almost choking himself. According to Corporal Behnke, the dog's behavior changed in that he exhibited excessive tail wagging and deep, labored breathing. As they neared the front of the vehicle, Corporal Behnke stated that K-9 Major turned to begin the detailed sniff, returned down the driver's side of the vehicle, and as they approached the rear tire, the dog stopped, turned back around, and began to sniff in the open driver's side window. According to Corporal Behnke, at one point, K-9 Major was trying to get in through the window, which was unusual behavior for him. And, at another point, K-9 Major stood and stared at the door, a sign of an indication. In light of the evidence presented, we cannot say that the circuit court erred in denying the motion to suppress the marijuana seized from the vehicle on the basis that K-9 Major's alert constituted reasonable suspicion for the search.
Finally, Jackson argues that the circuit court erred in denying his motion to suppress his custodial statement made after an illegally obtained statement in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and the fruit-of-the-poisonous-tree doctrine. In this regard, Jackson asserts that he never waived his rights under the Fifth and Sixth Amendments to the United States Constitution, and article 2, section 8 of the Arkansas Constitution. Thus, according to Jackson, because his second statement was the result of the first illegally obtained statement, it should be suppressed as fruit of the poisonous tree. Alternatively, he asserts that if this court finds that he did waive those rights, Corporal Behnke should not benefit from his unlawful conduct at the scene of the stop. The State argues to the contrary that because Jackson's statement at the police station was not the product of a "question first" interrogation tactic, but was a spontaneous statement uttered while refusing to answer further questions, this court should affirm the circuit court's denial of the motion to suppress the custodial statement.
A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. E.g., Leach v. State, 2012 Ark. 179, ___ S.W.3d ___. In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id. In order to make this determination, this court reviews the totality of the circumstances surrounding the waiver including the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. Id. The fact that the defendant is not a stranger to the criminal-justice system is a factor to be considered in determining whether a custodial statement was voluntarily made. E.g., Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. This court will reverse a circuit court's ruling on this issue only if it is clearly against the preponderance of the evidence. Id.
In advancing his argument that his custodial statement should be suppressed, Jackson relies on the Supreme Court's decision in Missouri v. Seibert, 542 U.S. 600 (2004). There, the defendant was interrogated by police at the station without being read her rights. She confessed; then, after a twenty-minute break, the officer read the Miranda rights to her, and she again confessed. The officer admitted that this was a conscious tactic, and as noted by the Supreme Court, it was an interrogation technique in which the officer would elicit a prewarning statement from the defendant, give the Miranda warnings, and then obtain a second statement that would be "largely a repeat of information . . . obtained" prior to the warning. Id. at 606. Thus, the question presented in Seibert was whether the second statement was admissible. The Supreme Court ultimately excluded both the pre- and post-Miranda statements, finding that the "question-first tactic effectively threatens to thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted." Id. at 617. In so doing, the Court concluded that in such circumstances a midstream recitation of warnings after an interrogation and an unwarned confession rendered the Miranda warnings ineffective. Id. at 604. More specifically, as explained by the Supreme Court, "[t]hese circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect's shoes would not have understood them to convey a message that she retained a choice about continuing to talk." Id. at 617 (footnote omitted).
While Jackson relies on the decision in Seibert to support his argument that the custodial statement should be suppressed, the facts as presented here are clearly distinguishable from those in Seibert. And, in fact, are more akin to those presented in the Supreme Court decision of Oregon v. Elstad, 470 U.S. 298 (1985). There the court was confronted with the issue of whether an initial failure by law-enforcement officers to administer Miranda warnings, without more, tainted subsequent admissions after a suspect had been advised and then waived his Miranda rights. In that case, an officer, in speaking to the appellant who was suspected in a burglary, told the appellant that he believed he was involved in the burglary, to which the appellant replied, "Yes, I was there." Id. at 301. The appellant had not been advised of his Miranda rights at that time. He was then transported to a sheriff's office, where he was advised of his Miranda rights, which he then waived, giving a full statement implicating himself in the burglary. The appellant's motion to suppress his custodial statement as fruit of the poisonous tree was rejected. That denial was reversed on appeal by the Oregon Court of Appeals, and the Supreme Court granted certiorari. In ruling that the subsequent statement was admissible and was not impermissibly tainted by the previous statement, the Court reasoned:
If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.
Id. at 309.
Here, after being advised of his Miranda rights, Jackson stated that he would not answer any questions because "[t]here's nothing for [him] to say because [the police] already [had his] weed." There was no evidence that Corporal Behnke's initial failure to advise Jackson of his Miranda rights on the roadside was purposeful or part of an interrogation-first tactic, such that his custodial statement should be suppressed as fruit of the poisonous tree. There is simply no merit to Jackson's contention that the coercive nature of events surrounding the first statement requires suppression of the second statement. As the Supreme Court stated in Elstad,
The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing "taint" to subsequent statements obtained pursuant to a voluntary and knowing waiver.
470 U.S. at 318. In this case, we cannot say that the circuit court erred in finding the custodial statement to be admissible when it was made after Miranda warnings that were clearly effective, as Jackson invoked his right to remain silent.
Affirmed; Court of Appeals' opinion vacated.
HANNAH, C.J., and BAKER, HART, JJ., and Special Justice GREGORY T. JONES concur.
HOOFMAN, J., not participating.
- ↑ Rule 3.1 of the Arkansas Rules of Criminal Procedure (2012) provides as follows:
A law enforcement officer lawfully present in any place may, in the [p5] performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. 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. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
- ↑ The issue in Thompson was analyzed pursuant to the Fourth Amendment, and this court specifically declined to analyze whether greater protections should be afforded under article 2, section 15 of the Arkansas Constitution. This court noted that the circuit court had not specified the basis for its ruling, that the issue was not sufficiently developed on appeal, and that full adversarial development was lacking. Thompson, 2010 Ark. 294, 377 S.W.3d 207. Here, too, we lack a specific ruling and full adversarial development of the issue. Accordingly, our analysis is limited to the Fourth Amendment.