                                 Cite as 2014 Ark. App. 623

                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                       No. CR-13-774


                                                  Opinion Delivered   November 5, 2014
REGGIE TERRELL BLAIR
                    APPELLANT                     APPEAL FROM THE PULASKI
                                                  COUNTY CIRCUIT COURT,
V.                                                SEVENTH DIVISION
                                                  [NO. 60CR-12-2141]

STATE OF ARKANSAS                                 HONORABLE BARRY SIMS, JUDGE
                                 APPELLEE
                                                  AFFIRMED



                            KENNETH S. HIXSON, Judge


       After a hearing on a motion to suppress and a jury trial in Pulaski County Circuit

Court, appellant Reggie Terrell Blair was convicted of possession of a firearm by certain

persons (a/k/a being a felon in possession of a firearm). Blair, a habitual offender, was

sentenced to prison for twelve years. On appeal, appellant argues that the trial court clearly

erred (1) in denying his pretrial motion to suppress because he was impermissibly stopped,

detained, and searched, as was his vehicle; and (2) by not requiring the prosecutor to offer a

race-neutral explanation for using peremptory strikes against two potential jurors both African

American, as required by Batson v. Kentucky, 476 U.S. 79 (1986). We affirm.

       Appellant’s criminal charge was the result of a traffic stop at approximately 10:00 p.m.

on June 1, 2012, in Maumelle, Arkansas, near Counts Massie Road and Maumelle Boulevard.

Testimony at the suppression hearing included the North Little Rock police officer (Sergeant
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Behnke) who initiated the traffic stop, as well as the two back-up officers (Officers Rappold

and Nannen) involved in the stop, seizure, and searches. Only Officer Rappold conducted

a search of appellant’s person and his vehicle. Marijuana was found in appellant’s pants

pocket, and subsequent to his arrest, a loaded gun was found in the car console. Appellant’s

written motion to suppress all evidence challenged the legality of the police stopping his car,

searching of his person, and searching the vehicle he was driving. After conducting a pretrial

hearing on the motion to suppress, the trial court summarily denied appellant’s motion

without explanation. The following is a summation of evidence taken at the suppression

hearing.

       Sergeant Behnke testified that he was working traffic enforcement that night when he

observed a vehicle (a Dodge Charger driven by appellant) traveling from a residential area

toward Maumelle Boulevard. Sergeant Behnke estimated appellant’s vehicle to be traveling

at approximately 50 miles per hour although it was in a 30-miles-per-hour speed zone when

it passed his patrol unit. He admittedly did not have a radar to determine the car’s precise

speed. He estimated the car speed based on his more than twenty years of experience as a

police officer, his experience as a certified radar operator and instructor, and his mandatory

ability to estimate vehicle speeds “within a small window.” He initiated a traffic stop after

following the vehicle for approximately a minute. Upon approach, Sgt. Behnke heard the

sole person in the car (appellant) say, “What do you want with me, mother f***er?” He told

appellant that he had been stopped for driving too fast, and he asked appellant for his driver’s

license, registration, and proof of insurance. Appellant produced his driver’s license, and Sgt.


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Behnke went back to his patrol unit. At that time, another patrol car arrived as “back up.”

Behnke admitted that he did not ultimately issue appellant a ticket for speeding. Instead, he

prepared a uniform citation on which he handwrote, “Physical Arrest” at the top, and

“(Vehicle Towed)” as well as “Too Fast for Conditions 27-51-201” near the bottom.

Sergeant Behnke said that he did not have any involvement in the subsequent searches.

       Officers Rappold and Nannen were in the back-up patrol car. Officer Rappold

testified that he stood at the rear passenger side of appellant’s car to keep watch while Sgt.

Behnke completed the paperwork. Officer Rappold heard appellant say something, so he

walked to the front of the vehicle, where he heard appellant remark, “You going to shoot me,

mother f***er?” Rappold then asked appellant to exit the vehicle, to which appellant said,

“No” and locked the door. After Officer Rappold asked a second time, appellant unlocked

the driver’s side door and stepped out of the car. The officer testified that he detected a very

strong odor of intoxicants. Both Officer Rappold and Officer Nannen described appellant’s

demeanor during this traffic stop as “aggressive.” At that point, Officer Rappold patted

appellant’s clothing and felt what he thought was marijuana in appellant’s pants pocket, which

was consistent with the strong, unique odor emanating from appellant while he was both

inside and outside the vehicle. The officer testified that he did not need the assistance of a

drug-detecting dog to verify that the odor was marijuana. After the officer patted appellant

down and had appellant in handcuffs, the officer removed the plastic bags of marijuana from

appellant’s pocket. Officer Rappold advised appellant that his car would be inventoried and

impounded because there was no one else there to drive it. The inventory search, prior to


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towing, revealed a loaded firearm with additional ammunition in the car’s console. Officer

Rappold testified that appellant told him that he had a gun in his car for protection.

       Officer Nannen testified that he was the other back-up police officer. After they

arrived on scene, Rappold stood watch at the rear passenger side of appellant’s vehicle.

Officer Nannen heard appellant yell something unintelligible to Rappold, and he observed

Rappold approach the appellant’s passenger-side window. Rappold then walked back to talk

to Officer Behnke and then he returned to appellant’s vehicle and asked appellant to exit the

vehicle. Officer Nannen described appellant’s demeanor as “very aggressive.” He observed

the pat down, and he assisted in placing appellant in handcuffs to effect the arrest, but he did

not assist with the vehicle inventory.

       On this evidence, the trial court denied appellant’s motion to suppress. The jury trial

proceeded with similar evidence and testimony. At trial, however, appellant’s girlfriend and

younger brother defended him, offering reasons why the gun was in the car. His girlfriend

testified that the car was hers; that she let appellant’s brother borrow her car that day; and that

appellant did not own a gun. His brother claimed ownership of the nine-millimeter weapon,

stating that he put it in the car console and forgot to remove it; he did not recall it being

loaded. The parties stipulated that appellant was a convicted felon. The jury found appellant

guilty as charged, and this timely appeal followed.

       Appellant does not contest that he was a felon or that the State proved that the firearm

found in the car was constructively possessed by him. Appellant’s first argument on appeal

concerns the denial of his motion to suppress the evidence based on an alleged illegal


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detention, leading to an illegal search and seizure of the weapon found in the car.1 Appellant

concedes that the initiation of a traffic stop was legal; his argument is focused on the

continued detention, the search of his person, and the search of the car following arrest. We

disagree that appellant has demonstrated clear error.

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

review based on the totality of the circumstances, reviewing findings of historical fact for clear

error and determining whether those facts give rise to reasonable suspicion or probable cause,

giving due weight to inferences drawn by the trial court and proper deference to the trial

court’s findings. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). Arkansas appellate

courts defer to the superior position of the circuit court to evaluate the credibility of witnesses

at a suppression hearing. Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). We will reverse

the denial of a motion to suppress only if the ruling is clearly against the preponderance of the

evidence. Id.

       Warrantless searches are presumptively unreasonable, and it is the State’s burden to

establish an exception to the warrant requirement. See Mounts v. State, 48 Ark. App. 1, 888

S.W.2d 321 (1994). A police officer may stop a motorist if he observes a moving violation,

regardless of whether the driver is actually guilty of the observed offense. Cassinelli v. State,

2013 Ark. App. 553. A police officer may arrest any person without a warrant if the officer



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        The admission into evidence of the marijuana found in appellant’s pants pocket is not
the issue on appeal; appellant was not charged with any drug-related offense. It is relevant,
however, to his suppression argument that the course of events leading to a search of
appellant’s vehicle and the seizure of the gun were “fruits of the poisonous tree.”

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has reasonable cause to believe that the person has committed a felony or any violation of the

law in the officer’s presence. Ark. R. Crim. P. 4.1(a)(iii) (2012). Where an officer has a valid

basis to stop the vehicle and detain the driver, if that officer has reasonable suspicion that the

driver is armed and dangerous to the officer or others, the officer may search the outer

clothing of the person and his immediate surroundings, seizing any weapon or other

dangerous thing that is usable against the officer or others. Ark. R. Crim. P. 3.4 (2012). An

officer making a valid traffic stop may, as a matter of course, order the driver to exit the

vehicle. Reeves v. State, 80 Ark. App. 61, 65, 91 S.W.3d 97, 100 (2002), citing Pennsylvania

v. Mimms, 434 U.S. 106 (1977). This safety-frisk pat down shall not be more extensive than

is reasonably necessary to ensure the safety of the officer or others. Ark. R. Crim. P. 3.4

(2012). The test is whether a reasonably prudent person in the circumstances would be

warranted in the belief that his safety or the safety of others was in danger. Reeves, supra. The

officer’s reasonable belief must be based on specific and articulable facts. Id. Appellant’s

argument focuses on his allegation of an unconstitutional pat-down (also called a Terry frisk)

and of an unconstitutional seizure of the contents of his pocket, admittedly not believed to

be a weapon. We disagree that the trial court clearly erred because there was objective

evidence—testified to by Officer Rappold—that appellant posed a potential threat by his

consistently aggressive demeanor, questioning whether the officer intended to shoot him.

This aggressive behavior was corroborated by Officer Nannen and was obviously deemed

credible by the trial court. We hold that appellant has failed to demonstrate that the trial

court clearly erred in deeming this safety-frisk a constitutionally valid act.


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       Added to the reasonable basis for a safety-frisk was Officer Rappold’s testimony that

he had already formed a legitimate reason to suspect that appellant was in possession of

marijuana, even before appellant exited the car. The marijuana odor emanating from

appellant and the vehicle, alone, provided reasonable suspicion to detain appellant to

determine the lawfulness of his conduct, to search the vehicle, and to arrest him, depending

on the circumstances. See Cockrell v. State, 2010 Ark. 258, 370 S.W.3d 197; McDaniel v. State,

337 Ark. 431, 990 S.W.2d 515 (1999); Brunson v. State, 327 Ark. 567, 940 S.W.2d 440

(1997); Lopez v. State, 2009 Ark. App. 750. The critical inquiry requires us to focus on what

information was gleaned by the officers prior to the conclusion of the traffic stop. See

Yarbrough v. State, supra.

       The arrest led to the car being inventory-searched, in preparation for towing and

impounding. Appellant never specifically challenged the legality of the search on the basis of

an invalid search-incident-to-arrest or invalid inventory-and-impound. This aspect of his

suppression argument, to the extent it appears he is making it, is not preserved for our review

on appeal.

       Concluding our consideration of appellant’s suppression-related arguments, we defer

to the credibility determinations of the circuit court. See Montgomery v. State, 367 Ark. 485,

241 S.W.3d 753 (2006); Robinson v. State, 2013 Ark. App. 464. After our de novo review,

we have no hesitancy in holding that the denial of appellant’s motion to suppress was not

clearly against the preponderance of the evidence.




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       Appellant’s other argument on appeal concerns jury selection. Appellant, who is an

African-American male, contends that the trial court erred in permitting the prosecutor to use

peremptory strikes to remove two African-American jurors (a male and a female) solely on

the basis of race in violation of Batson, supra. Appellant’s precise argument is that the trial

court erred in not requiring the State to present a race-neutral reason for striking those two

jurors, thus deeming appellant not to have established a prima facie case of race discrimination.

We disagree that appellant has demonstrated error.

       It is true that under Batson, a prosecutor in a criminal case may not use peremptory

strikes to exclude jurors solely on the basis of race. See Holder v. State, 354 Ark. 364, 124

S.W.3d 439 (2003); Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002). The United States

Supreme Court in Batson adopted a three-part test to determine whether a peremptory strike

violates the Equal Protection Clause. Holder, supra. Those three steps require the following:

(1) the opponent of a peremptory challenge must make a prima facie case of racial

discrimination; (2) the proponent of the strike must come forward with a race-neutral

explanation; and (3) the trial court must decide whether the opponent has proved purposeful

racial discrimination. Id. See also MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

       In order to establish the first step—a prima facie case of purposeful discriminatory

intent—the opponent must present facts to raise an inference to support that purposeful

discriminatory intent. Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). This first step

is accomplished by showing (1) that the strike’s opponent is a member of an identifiable racial

group; (2) that the strike is part of a jury-selection process or pattern designed to discriminate;


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and (3) that the strike was used to exclude jurors because of their race. Cox v. State, 345 Ark.

391, 47 S.W.3d 244 (2001). The trial court must consider all relevant circumstances in

deciding whether a prima facie case has been made, i.e., whether the opponent produced

evidence sufficient to permit the inference that discrimination has occurred. MacKintrush,

supra. Here, the trial court concluded that appellant failed to present a prima facie case

of racial discrimination, ending the inquiry. The striking of two African-American jurors,

alone, does not establish a pattern or process designed to discriminate. See Smith v. State, 294

Ark. 357, 742 S.W.2d 936 (1988). The trial court’s ruling was not clearly against the

preponderance of the evidence. See Moore v. State, 92 Ark. App. 453, 215 S.W.3d 688 (2005);

Lewis v. State, 84 Ark. App. 327, 139 S.W.3d 810 (2004). Consequently, we affirm.

       Affirmed.

       WHITEAKER and BROWN, JJ., agree.

       Cheryl Barnard, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for

appellant.

       Dustin McDaniel, Att’y Gen., by: Laura Shue, Ass’t Att’y Gen., for appellee.




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