                                 Cite as 2016 Ark. App. 9


                ARKANSAS COURT OF APPEALS
                                      DIVISION I
                                     No. CR-15-502

                                               OPINION DELIVERED JANUARY 13, 2016

 WILLIAM DANIEL MEEKS                          APPEAL FROM THE WASHINGTON
                   APPELLANT                   COUNTY CIRCUIT COURT
                                               [NO. CR-14-2118-6]
 V.
                                               HONORABLE MARK LINDSAY,
                                               JUDGE
 STATE OF ARKANSAS
                                APPELLEE       REVERSED AND REMANDED



                         ROBERT J. GLADWIN, Chief Judge

       Pursuant to Arkansas Rule of Criminal Procedure 24.3 (2014), appellant William

Daniel Meeks entered a conditional plea of guilty in the Washington County Circuit Court

to the charge of DWI-First Offense. On appeal, Meeks argues that Fayetteville Police

Officer Kristin Mercado seized him by conducting a traffic stop without reasonable suspicion

as required by Arkansas Rule of Criminal Procedure 3.1 (2014) and that the stop was not

authorized by Officer Mercado’s community-caretaking function or any emergency-aid

exception. We agree; accordingly, we reverse and remand.

                                          I. Facts

       The facts of this case are undisputed. On March 16, 2014, at approximately 1:00

a.m., Officer Mercado observed a black Chevy Tahoe parked in the Marvin’s IGA parking

lot approximately fifty feet off of the nearest public road. Marvin’s IGA was closed. The

Tahoe was parked and not moving, and there were no other vehicles in close proximity.
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       As she was driving past the parking lot, Officer Mercado observed that the passenger-

side door was open and that a passenger was leaning out of the vehicle vomiting. She

observed the passenger vomiting for ten-to-fifteen seconds. Officer Mercado turned right

into the parking lot, stopped behind the Tahoe, and placed her spotlight on the vehicle, but

she did not activate her blue lights at this time. She was not responding to any call

concerning this vehicle, Marvin’s IGA, or the parking lot.

       Prior to Officer Mercado getting out of her vehicle, but after she pulled in behind

the Tahoe, the passenger finished vomiting, sat back up in the vehicle, and closed the

passenger door. After the passenger shut the passenger door, Meeks—who was driving the

Tahoe—started to drive toward an exit from the parking lot. Prior to Meeks’s attempt to

drive away, Officer Mercado did not do anything to indicate to Meeks that he needed to

remain, that he should not leave, or that he needed to stop and talk to Officer Mercado. As

Meeks was starting to exit the parking lot, he did not spin or squeal his tires, and he did not

drive in an erratic, careless, or reckless manner.

       Just as Meeks began to drive away, but while still in the parking lot, Officer Mercado

activated her blue lights and notified dispatch that she was conducting a traffic stop. Before

she activated her blue lights, Officer Mercado did not see Meeks commit any traffic

violations or criminal acts, and Meeks immediately pulled into a parking place very close to

where he had originally stopped the vehicle. Officer Mercado ultimately arrested Meeks and

charged him with DWI-First Offense.

       Meeks filed a motion to suppress illegally obtained evidence on December 23, 2014.

The motion asserted that Officer Mercado illegally stopped, detained, seized, and searched

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Meeks without a warrant in violation of the Fourth Amendment to United States

Constitution, article 2, section 15 of the Arkansas Constitution, and the Arkansas Rules of

Criminal Procedure. The circuit court conducted a hearing on the motion on February 13,

2015, and subsequently denied the motion.

        After the denial of the motion, Meeks entered a conditional plea on the charge of

DWI–First Offense. The circuit court sentenced Meeks to a fine of $600; $300 in court

costs; $20 in booking/administrative fees; and ninety days in the county jail, with eighty-

eight of those days suspended, and credit given for one day already served pursuant to a

February 19, 2015 sentencing order. Meeks filed his timely notice of appeal on March 20,

2015.

                                    II. Standard of Review

        Meeks raises two points in this appeal, both of which relate to the circuit court’s

decision to deny his motion to suppress. The standard of review is the same for both points.

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., Johnson v. State, 2015 Ark. 387, 472 S.W.3d 486. 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. Id. We defer to the superiority of the circuit court to evaluate the credibility of




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witnesses who testify at a suppression hearing. Id. We reverse only if the circuit court’s

ruling is clearly against the preponderance of the evidence. Id.

        III. Illegal Seizure by Conducting a Traffic Stop Without Reasonable Suspicion as
                       Required By Arkansas Rule of Criminal Procedure 3.1

       Meeks asserts that he was pulled over by Officer Mercado while obeying the law,

committing no traffic or criminal violations, and doing nothing more than he had the legal

right to do. In Arkansas, all police-citizen encounters are classified into one of three

categories: (1) a consensual, voluntary encounter; (2) a seizure; or (3) an arrest. See Cockrell

v. State, 2010 Ark. 258, 370 S.W.3d 197. All police-citizen encounters are transformed into

a seizure when a reasonable person would believe that he is not free to leave. See id. It is

well settled in Arkansas that a person is “seized” by a police officer when the police officer

effectuates a traffic stop by using blue lights. Hammons v. State, 327 Ark. 520, 940 S.W.2d

424 (1997); State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997); Stevens v. State, 91 Ark.

App. 114, 208 S.W.3d 843 (2005).

       Meeks asserts, and the State acknowledged at the oral argument on this appeal, that

he was seized by Officer Mercado within the meaning of the Fourth Amendment to the

United States Constitution and article 2, section 15, of the Arkansas Constitution at the time

she activated her blue lights to conduct a traffic stop on the vehicle driven by Meeks. These

constitutional protections extend to even brief investigatory stops of persons or vehicles. See

Terry v. Ohio, 392 U.S. 1 (1968); Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). Both

the federal and state constitutional provisions are nearly identical and prohibit unreasonable

searches and seizures not supported by probable cause or reasonable suspicion. See U.S.



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Const. amend. IV; Ark. Const., art. II, § 15. The remaining question is whether Officer

Mercado had probable cause to do so. We hold that she did not.

       In Arkansas, a law enforcement officer lawfully present in any place may seize any

person or vehicle if the officer has, under the totality of the circumstances, specific,

particularized, and articulable reasons indicating the person or vehicle may be involved in

criminal activity. See Cockrell, supra. Essentially, a seizure must be based on a reasonable

suspicion that the person has committed or is about to commit a crime. Rule 3.1 of the

Arkansas Rules of Criminal Procedure authorizes a police officer to stop and detain any

person who he or she 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

property. Our supreme court has defined “reasonable suspicion” as suspicion that is based

on facts or circumstances which give rise to more than a bare, imaginary, or purely

conjectural suspicion. See Hammons, supra. Further, a police officer is justified in making a

traffic stop if he or she has probable cause to believe that the vehicle has violated a traffic

law. See Whren v. United States, 517 U.S. 806 (1996); Sims v. State, 356 Ark. 507, 157 S.W.3d

530 (2004); Mosley v. State, 2009 Ark. App. 799, 370 S.W.3d 273. Accordingly, before

Officer Mercado could stop Meeks using her blue lights, she needed to have reasonable

suspicion that he had committed a crime or probable cause to believe that he had committed

a traffic violation. Meeks notes that based upon Officer Mercado’s own testimony, she had

neither.




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       Officer Mercado specifically testified that she did not see Meeks commit any traffic

violations or any criminal act before she activated her blue lights. The following colloquy

occurred during the cross-examination of Officer Mercado:

       MR. NELSON: Before you turned the blue lights on did you see Mr. Meeks commit
       any traffic violations?

       OFFICER MERCADO: No, sir.

       MR. NELSON: Did you see him commit any criminal acts?

       OFFICER MERCADO: No, sir.

       Officer Mercado testified honestly and truthfully that she did not see Meeks commit

any traffic violations or criminal acts. She testified that she was not “making a traffic stop”

at this time because she had not “observe[d] any infractions.” She explained that she “was

just pulling in to check on the vehicle and the occupants.” Based on that testimony,

combined with our de novo review of the dash-cam video of the stop, we hold that the

circuit court’s denial of Meeks’s motion to suppress was clearly erroneous. Officer Mercado

did not observe anything that would lead a reasonable person to suspect that either Meeks

or his passenger was committing any crime. The only information known about Meeks’s

passenger was that he was leaning out of a vehicle and vomiting. This act gives rise to a

suspicion only that the passenger was sick, the cause of which is irrelevant because, whether

due to a stomach virus, a gastrointestinal condition, eating too much, drinking alcohol, or

any combination of these things, none of these things is illegal in Arkansas. At this point,

there existed no fact that could give rise to reasonable suspicion or probable cause of any

crime or traffic violation in the mind of an objectively reasonable officer knowing what

Officer Mercado knew at the time.
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       Officer Mercado testified that the only thing that changed between the time she first

pulled in and the time it took her to activate her blue lights was Meeks starting to drive

away. Based on our viewing of the dash-cam video, the other thing that changed was that

the passenger stopped throwing up, sat back up, and closed the vehicle door. Meeks’s vehicle

was not parked in a manner taking up several parking spots but was, instead, stopped in the

driving lane of the parking lot. It was clear that the brake lights were on, and the vehicle

was sitting stationary while the passenger was leaning out of his open door vomiting. It

appeared that the passenger door was open for only a few seconds. Though difficult to see,

it appeared that Officer Mercado’s spotlight was turned on and was pointed in the direction

of Meeks’s vehicle while the passenger was still vomiting, that a few seconds went by, the

passenger door closed, and the vehicle started to leave.

       A review of the dash-cam video confirms that Meeks did not flee from or evade

Officer Mercado. He simply left after it was safe to do so, after his passenger was back inside

the vehicle with the door shut. Under these specific circumstances, we reverse the circuit

court’s conclusion that Meeks’s act of leaving amounted to an attempted flight or an evasive

procedure that somehow gave Officer Mercado reasonable suspicion to then activate her

blue lights and conduct a traffic stop on Meeks’s vehicle.

             IV. Illegal Seizure by Conducting a Traffic Stop Not Authorized by the
                 Community-Caretaking Function or Emergency-Aid Exception

       Because Officer Mercado’s stop of Meeks was not supported by Rule 3.1, we next

analyze whether the stop of Meeks was authorized by Officer Mercado’s community-

caretaking function or an emergency-aid exception. Under these particular circumstances,

we hold that these theories also do not support Officer Mercado’s stop.
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       In Cady v. Dombrowski, the United States Supreme Court held that a search of the

trunk of a disabled 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). Courts from the Eighth Circuit and the State of Arkansas

have acknowledged that certain situations give rise to an officer’s community-caretaking

functions. For example, as part of the community-caretaking function, an officer is

authorized to respond to the scene of an accident and make contact with those present when

a vehicle is partly in the roadway. See United States v. Smith, 162 F.3d 1226 (8th Cir. 1998).

In addition, an officer is authorized to respond to the report of a stolen vehicle found

abandoned and constituting a hazard on a public highway and to perform an inventory

search pursuant to department policy. See Lipovich v. State, 265 Ark. 55, 576 S.W.2d 720

(1979). An officer is even authorized pursuant to the community-caretaking function to

have a vehicle towed and to perform an inventory search pursuant to department policy

after arresting a driver on outstanding warrants. See Colyer v. State, 9 Ark. App. 1, 652

S.W.2d 645 (1983).

       This court recognized the existence of an officer’s “community caretaking function”

in Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988). In Blakemore, a deputy

approached a vehicle with its motor running and lights on. The deputy observed that the

driver was “either asleep or passed out” in the front seat. Blakemore, 25 Ark. App. at 336–

37, 758 S.W.2d at 426. After the deputy repeatedly knocked on the window, the driver

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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.

       More recently, in Szabo v. State, 2015 Ark. App. 512, 470 S.W.3d 696, this court

permitted an officer to detain a driver for further investigation pursuant to the community-

caretaking function. As in Blakemore, supra, an officer approached a vehicle and observed the

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

respond to the officer knocking on his window, the officer continued his community-

caretaking function by opening the unlocked door.

       In 2001, the Eighth Circuit also addressed an officer’s community-caretaking

functions. See Winters v. Adams, 254 F.3d 758 (8th Cir. 2001). In Winters, the police officers

responded to a report of an intoxicated person exiting and reentering a vehicle on a dead-

end street. See id. When the police officers arrived on scene, they made consensual contact

with an individual sitting in the driver’s seat of the only vehicle on the dead-end street. See

id. After some discussion between an officer and the driver, the driver raised the car window,

locked the door, and stated that he wished to be left alone. See id. Officers then observed

the occupant of the vehicle begin to sweat, to behave strangely and extremely hyper, to

move wildly about the car, to become highly agitated, and to yell at the police officers to

leave him alone. See id. The officers testified that they began to suspect that the suspect was

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under the influence of an illegal drug and was possibly overdosing. See id. The officers

therefore decided to make entry into the vehicle. See id. The Eighth Circuit found that the

police contact was justified because there had been enough observations by the police

officers to suspect that the suspect was intoxicated on some substance and was a danger to

himself and others. See id.

       There are factors distinguishing Winters, Szabo, and Blakemore from the present case.

First, Officer Mercado was not responding to any type of report, let alone an intoxicated

person or a vehicle with a visibly impaired driver. Second, Meeks never said or did anything

to give Officer Mercado the impression that Meeks needed her help. The correct standard,

and what Officer Mercado must show to justify her actions based on an alleged medical

emergency, is that she had an objective basis for believing that someone in the vehicle was

in immediate need of medical assistance or was in imminent danger. See Mincey v. Arizona,

437 U.S. 385, 390 (1978); Miller v. State, 2010 Ark. 1, 362 S.W.3d 264.

       A case from the Texas Court of Appeals, Andrews v. State, 79 S.W.3d 649 (Tx. Ct.

App. 2002), is instructive. In Andrews, a police officer saw a vehicle pull to the paved

shoulder of Interstate 45 at 1:00 a.m., and he saw a female lean out of a passenger door and

begin vomiting. Id. The officer pulled up behind the vehicle, at which time the passenger

shut her door and the vehicle began to pull away. See id. The officer then activated his blue

lights and stopped the vehicle. See id. In deciding whether the stop was justified by the

officer’s community-caretaking function, the court analyzed four factors: (1) the nature and

level of distress exhibited by the individual; (2) the location of the individual; (3) whether

or not the individual was alone and/or had access to assistance independent of the officer;

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and (4) to what extent the individual—if not assisted—presented a danger to himself or

others. See id. After pointing out that there was another individual on scene, the driver, who

was able to assist the individual vomiting and that nothing indicated that the passenger’s

condition was any more serious than an upset stomach, the Andrews court held that this stop

was not justified by a community-caretaking function. Id.

       The present case is factually similar to Andrews. The vomiting passenger likewise

showed no signs of having anything more serious than an upset stomach. Nothing indicated

that Meeks could not provide whatever assistance the passenger needed, and neither Meeks

nor the passenger indicated a need or desire for assistance from Officer Mercado. See also

Wright v. State, 18 S.W.3d 245, 246 (Tx. Ct. App. 2000). The officers in Wright stopped a

vehicle out of concern for the welfare of the passenger after observing him leaning out of

the rear window and vomiting at 4:00 a.m. See id. The court held that the traffic stop was

an illegal seizure, noting that (1) the vomiting person was a passenger in a car that was being

driven in a lawful manner; (2) the passenger appeared to be having some gastric distress, but

that the driver appeared to be able to aid the passenger; (3) no one in the vehicle indicated

that they needed help from the officer; and (4) nothing indicated that the officer’s assistance

was necessary or would add to the comfort or welfare of the passenger. See id.

       We contrast these facts with those in the recent Nebraska Court of Appeals case that

examined this issue and reached the opposite conclusion. In State v. Rohde, , 864 N.W.2d

704 (Neb. Ct. App. 2015), the court examined at length opinions from courts across the

country that both favor and oppose the ability of an officer to offer assistance in cases

involving a passenger, rather than the driver. Id. The court concluded that the community-

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caretaking function applies equally to drivers and passengers, and, based on factors such as

those listed in Andrews, it held that it was reasonable for the officer in that case to stop a car

where the officer observed a female passenger’s upper body was sticking out through the

moon roof of a moving vehicle waving her arms in order to determine if she may have been

trying to wave him down for assistance. For this reason, the officer activated his blue lights

and stopped the vehicle. See id. The Nebraska Court of Appeals upheld the stop based on

the officer’s community-caretaking function because the officer could have reasonably

concluded that the passenger was “attempting to flag him down to obtain his assistance.”

See id. In this case, Meeks and his passenger did just the opposite of the passenger in Rohde.

Meeks and his passenger did nothing to indicate that they wanted or needed Officer

Mercado’s assistance.

       Although the police have the right to respond to emergency situations, the Fourth

Amendment bars police officers from engaging in a warrantless seizure based on an alleged

medical condition unless the police officer can show that it was objectively reasonable to

believe that a person was in need of immediate aid or was in imminent danger. See Mincey,

supra; Miller, supra. There must be an objectively reasonable basis for believing that medical

assistance was needed or persons were in danger. Miller, supra. In this case, there are no

facts to indicate that Meeks or his passenger was in imminent danger or that anyone in the

vehicle was in need of immediate aid. When viewed objectively, it is clear that it was

unreasonable for Officer Mercado to think that Meeks or his passenger was in imminent

need or danger of any of these things. Therefore, there was no emergency that authorized

Officer Mercado’s stop of Meeks under the facts of this case.

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       We hold that the circuit court erred by denying Meeks’s motion to suppress because

Officer Mercado acted unreasonably and illegally seized Meeks in violation of the Fourth

Amendment to the United States Constitution and article 2, section 15, of the Arkansas

Constitution. When viewed objectively, there are no facts that could lead a reasonable

person to think that either Meeks or his passenger was in immediate need of medical

assistance or was in imminent danger. The circuit court should have granted the motion,

and all evidence obtained after this illegal seizure should have been suppressed. Accordingly,

we reverse and remand to the circuit court for further proceedings consistent with this

opinion.

       Reversed and remanded.

       GLOVER and VAUGHT, JJ., agree.

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

       Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.




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