                                  Cite as 2015 Ark. App. 512

                 ARKANSAS COURT OF APPEALS
                                         DIVISION II
                                        No. CR-14-933


AARON JAMES SZABO                                  Opinion Delivered   September 23, 2015
                                APPELLANT
                                                   APPEAL FROM THE WASHINGTON
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. CR-2014-462-1]

STATE OF ARKANSAS                                  HONORABLE WILLIAM A. STOREY,
                                   APPELLEE        JUDGE

                                                   AFFIRMED



                                CLIFF HOOFMAN, Judge

       Aaron James Szabo appeals after he entered a conditional plea on the charge of Driving

While Intoxicated—First Offense and was sentenced by the Washington County Circuit

Court (“trial court”) to a fine of $325, court costs of $300, and booking/administrative fee

of $20.1 On appeal, appellant contends that (1) the police officer illegally seized appellant by


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          While the trial court orally pronounced that it sentenced appellant to one day in
county jail with one day jail credit, the written sentencing order does not reflect that the trial
court sentenced him to any time in county jail. Our supreme court has held that when there
is a discrepancy between the written sentencing order and the oral pronouncement of
sentence, it is the written sentencing order that controls. See Vance v. State, 2011 Ark. 243,
383 S.W.3d 325. Additionally, we note that appellant’s sentence is, therefore, illegal on its
face. Arkansas Code Annotated section 5-65-111(a)(1) requires a minimum of twenty-four
hours’ imprisonment unless the trial court includes reasons for an order of public service in
lieu of jail in the court’s written order or judgment. Although appellant’s sentence is illegal,
the statute authorizing the correction of illegal sentences at any time does not permit us to
increase his sentence to comply with the statutory minimum absent an appeal or cross-appeal
from the State. Blackwell v. State, 2015 Ark. App. 96, 455 S.W.3d 848; King v. State, 2012
Ark. App. 94; Cook v. State, 46 Ark. App. 169, 878 S.W.2d 765. As no such appeal was
tendered here, we cannot address the legality of appellant’s sentence. Id.
                                 Cite as 2015 Ark. App. 512

opening the driver’s door and positioning himself between the open door and the seat

occupied by appellant; (2) the police officer had no objective reason to believe that appellant

was in immediate need of medical assistance and imminent danger of death or serious bodily

harm, and thus, no exigent circumstances existed authorizing the officer’s opening of the car

door and entry into appellant’s vehicle; (3) the police officer illegally searched appellant’s

vehicle by opening the driver’s door and leaning into appellant’s vehicle; and (4) the police

officer illegally seized appellant by opening the driver’s door, entering appellant’s vehicle,

turning off appellant’s vehicle, and removing and taking possession of the keys to the vehicle.

We affirm.

       Appellant appealed his case for driving while intoxicated from the Fayetteville District

Court to the Washington County Circuit Court on March 6, 2014. On April 25, 2014,

appellant filed a motion to suppress illegally obtained evidence, and a hearing was held on

June 16, 2014. At the hearing, Corporal Greg Dawson testified that he was patrolling on

March 2, 2013, at approximately 4:30 in the morning when he noticed appellant’s vehicle

parked in a parking lot on Block Street with its lights on. After parking his vehicle a few spots

from appellant, he walked up to appellant’s car and noticed that the vehicle was “running,”

and appellant was in the driver’s seat “laid back, somewhat leaning over the center.” After

knocking on the window several times without any response or movement, Corporal Dawson

opened the unlocked door and leaned into the vehicle. On direct examination, he testified

that he “leaned in, shook the driver, asked him if he was awake, didn’t get a response. That’s

when I noticed an odor of intoxicants from inside that vehicle, figuring that he was


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intoxicated that’s why I turned the vehicle off.” Corporal Dawson knew appellant was

breathing, but he did not know if he was just asleep or unconscious. While he did not

eliminate his medical concerns, once he smelled the alcohol, he thought that appellant was

probably “drunk” and “passed out.” After not receiving any response from appellant, despite

several attempts to wake him, Corporal Dawson testified that he “did the sternum rub on

him.”

        On cross-examination, appellant’s counsel questioned Corporal Dawson regarding his

written report that did not mention an “odor of intoxicants” until the third paragraph, in

which he described appellant’s behavior after exiting the vehicle. Corporal Dawson explained

that he did not remember whether he shook appellant before or after he turned the vehicle

off and placed the keys on top of the vehicle. However, he testified that he remembered that

he noticed the smell of alcohol before he turned the vehicle off because he was concerned

that, if appellant woke up with the engine running, appellant would immediately try to drive

with him in the doorway. After observing the video from his vehicle’s dashboard camera that

was played during the hearing, he admitted that he had turned the vehicle off before he

verbally tried to wake appellant but did not remember when he started to shake appellant.

However, he admitted that “[m]ore than likely” he had turned the vehicle off before he

attempted to wake appellant either verbally or by physically shaking him. Additionally, at

some point after Corporal Dawson opened the door, he heard appellant snoring. After

appellant finally woke up, he was subsequently arrested for driving while intoxicated by

Officer Ryan Schleiff, who testified that he responded to the scene after appellant was already


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outside of the vehicle and had performed the field-sobriety tests.

       After appellant’s counsel orally argued that the search and seizure violated appellant’s

Fourth Amendment right, the trial court made the following ruling:

       I suppose the real issue here is whether or not opening the door is, one, a seizure and
       the officer going into the interior of the vehicle, of the Defendant’s vehicle is a search.
       That’s, at least as I understand it, the issue. I think it is of some significance here that
       one, this occurred in the early morning hours of March 2nd, and that seems to be
       always a problem in these cases that we don’t -- they don’t get to this Court for over
       a year and memories do tend to fade.
               But nonetheless, I think that the testimony of Corporal Dawson is important
       to the extent that he did consider when he approached the vehicle -- again the facts
       are not in dispute at all, about 4:00 a.m. on March 2nd, last year. At that particular
       time of day with the motor of the vehicle running, with the Defendant, Mr. Szabo
       apparently unconscious or sound asleep, described it a variety of ways, unresponsive
       when the officer bangs on the window or taps on the window or beats on the
       window. Given the fact, at least in my view, that he at least, he, being the police
       officer, Corporal Dawson considered the fact that it may be a medical problem,
       although clearly he didn’t know and as it turned out it was not, so I don’t see any
       particular need to include that in the report.
               But I think it was clearly appropriate to continue the investigation by opening
       the door, and to some extent it can be argued and I think with some force, that the
       situation as presented and as described may well have constituted exigent
       circumstances. So once he opens the door, he, being Officer Dawson, smells the odor
       of alcohol and then clearly has a right under 3.1 to continue his investigation by seizing
       the Defendant and so in my judgment -- and it’s an interesting case. And perhaps
       there are obviously not a number of cases in any jurisdiction that are identical, but
       nonetheless, I feel as though the seizure did not occur until the keys were removed
       from the ignition, the car was turned out -- again, turned off after the odor of alcohol
       was apparent. So in my judgment the State has met its burden and the motion is
       denied.

After appellant timely filed his appeal, this court ordered appellant to file a supplemental

addendum to provide an exhibit of the video recording of the officer’s dashboard camera to

the members of our court. Szabo v. State, 2015 Ark. App. 354. Appellant properly filed a

supplemental addendum, and this appeal followed.


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       Appellant contends on appeal that (1) the police officer illegally seized appellant by

opening the driver’s door and positioning himself between the open door and the seat

occupied by appellant; (2) the police officer had no objective reason to believe that appellant

was in immediate need of medical assistance and imminent danger of death or serious bodily

harm, and thus, no exigent circumstances existed authorizing the officer’s opening of the car

door and entry into appellant’s vehicle; (3) the police officer illegally searched appellant’s

vehicle by opening the driver’s door and leaning into appellant’s vehicle; and (4) the police

officer illegally seized appellant by opening the driver’s door, entering appellant’s vehicle,

turning off appellant’s vehicle, and removing and taking possession of the keys to the vehicle.

The State disagrees, however, and contends that the trial court did not err in denying

appellant’s motion to suppress because Corporal Dawson “rightly exercised his function as a

community caretaker and opened the door to check on appellant.” We agree.

       On review of a trial court’s denial of a motion to suppress evidence, this court reviews

the trial court’s factual determinations for clear error, while reviewing its legal conclusions de

novo. James v. State, 2012 Ark. App. 118, 390 S.W.3d 95. Consistent with this standard, this

court defers to the superior position of the trial court to determine the credibility of witnesses

and to resolve evidentiary conflicts, but resolves legal questions through an independent

determination based on the totality of the circumstances. Id.

       This court has previously recognized the existence of an officer’s “community

caretaking function.” Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988). In Cady

v. Dombrowski, the United States Supreme Court held that a search of the trunk of a disabled


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vehicle without a warrant did not violate the Fourth and Fourteenth Amendments, explaining

that local police officers frequently “engage in what, for want of a better term, may be

described as community caretaking functions, totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal statute.” 413

U.S. 433, 441 (1973). In Blakemore, a deputy approached a vehicle with its motor running

and lights on. Blakemore, supra. He observed that appellant was “either asleep or passed out”

in the front seat. Blackemore, 25 Ark. App. at 336–37, 758 S.W.2d at 426. After the deputy

repeatedly knocked on the window, appellant woke up, and the deputy smelled alcohol and

observed appellant stumble when he got out of his vehicle. Id. This court held that

“[a]lthough he did not see any blood or physical injuries, Deputy Rushing did not know if

the appellant was ill, drunk, or merely asleep. Given these circumstances we believe that

Deputy Rushing, as part of his community caretaking function, was justified in knocking on

the appellant’s window to question him and make an inquiry.” Id. at 340, 758 S.W.2d at

428–29.

       As in Blakemore, Corporal Dawson approached appellant’s vehicle and observed

appellant in the front seat, unconscious, with the motor running. After appellant failed to

respond to Corporal Dawson knocking on his window, Corporal Dawson continued his

community caretaking function in opening the unlocked door. The trial court specifically

found that once Corporal Dawson opened the door, he smelled an odor of alcohol. Rule 3.1

of the Arkansas Rules of Criminal Procedure (2014) provides,

       A law enforcement officer lawfully present in any place may, in the performance of his
       duties, stop and detain any person who he reasonably suspects is committing, has

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       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.

Our courts have determined that a possible driving-while-intoxicated offense falls within the

ambit of the rule. Murrell v. State, 2011 Ark. App. 311. Thus, after Corporal Dawson smelled

the alcohol, Rule 3.1 permitted Corporal Dawson to detain appellant for further investigation,

and the trial court properly denied appellant’s motion to suppress.

       Affirmed.

       GLADWIN, C.J., and WHITEAKER, J., agree.

       Norwood & Norwood, P.A., by: Jon Nelson, Alison Lee, and Doug Norwood, for appellant.

       Leslie Rutledge, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.




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