                                    Cite as 2014 Ark. App. 139

                   ARKANSAS COURT OF APPEALS
                                       DIVISIONS I & II
                                       No. CR-12-1027


CHARLES STUTTE                                     Opinion Delivered   February 26, 2014
                                 APPELLANT
                                                   APPEAL FROM THE WASHINGTON
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. CR-2012-765]
STATE OF ARKANSAS
                                   APPELLEE        HONORABLE WILLIAM A. STOREY,
                                                   JUDGE

                                                   AFFIRMED



                                BILL H. WALMSLEY, Judge

       Appellant Charles Stutte appeals his convictions for driving while intoxicated (DWI)

and resisting arrest. He argues that the warrantless arrest in his home violated the Fourth

Amendment and that there was insufficient evidence of resisting arrest. We affirm.

       Appellant filed a motion to dismiss in circuit court, arguing that his arrest constituted

an unreasonable search and seizure because the arresting officer entered his home without a

warrant or exigent circumstances.1 The motion was heard in conjunction with appellant’s

bench trial.

       Corporal Robert Hargus of the Fayetteville Police Department testified that on July

31, 2011, he was working as a selective traffic enforcement unit in the Mount Comfort area.

He noted that, prior to the incident involving appellant, there had been some calls reporting

loud parties in that area. Around 1:30 a.m. Sunday morning, Hargus observed appellant’s car

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           This motion was treated as a motion to suppress illegally obtained evidence.
                                   Cite as 2014 Ark. App. 139

exceeding the speed limit and failing to maintain its lane. He saw the car move side to side,

crossing onto the broken white line separating the lanes. Hargus then activated his recording

device and followed the car. He saw the car twice move left over the double yellow line and

subsequently move over the solid white fog line. Hargus testified that there was moderate

traffic in the area at the time. Hargus activated his patrol lights, but the car did not pull over

and continued on at the same speed. Hargus felt that the car could have safely pulled over

because there were large open parking areas in the immediate vicinity.

       When the car did not respond to his blue lights, Hargus activated his siren. Again the

car did not pull over and continued traveling at the same pace. In a final attempt to get the

car stopped, Hargus shined his spot light into the rear view mirrors of the car. Still, it did not

pull over. Eventually, the car turned left onto another street, turned into a driveway, and

parked in a garage that had just been opened. Hargus had unsuccessfully attempted to stop

the car for more than a minute.

       Hargus testified that appellant got out of his car and began walking towards the rear

of the car. Hargus asked him to stop and said that he needed to talk to him. Appellant

replied “what,” and Hargus repeated his request to come talk to him. Appellant then replied

“why” and turned to walk toward the interior door to the house. Hargus said that he stepped

inside the garage, grabbed appellant’s right arm, and told him to stop. Hargus said that he

smelled a strong odor of intoxicants and observed that appellant was sweating. Appellant

tugged his right arm, used profanities, and tried to walk away. Hargus said at that point he

told appellant that he was under arrest for suspicion of drunk driving. Appellant struggled


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when Hargus attempted to handcuff him. Appellant was charged with DWI, resisting arrest,

violation of the implied-consent law, and careless driving.

       Appellant argued that there were no exigent circumstances that would have allowed

Hargus to enter his garage for a misdemeanor arrest. The circuit court found that there was

probable cause for appellant’s arrest, that there were exigent circumstances, and that driving

while intoxicated was not a minor offense. The court found appellant guilty of all of the

charges and merged the careless-driving count into the DWI conviction.

                                           I. DWI

       A warrantless entry into a private home is presumptively unreasonable. Norris v. State,

338 Ark. 397, 993 S.W.2d 918 (1999). The burden is on the State to prove that the

warrantless activity was reasonable. Id. On appeal, this court will make an independent

determination of the reasonableness of the warrantless arrest based on the totality of the

circumstances. Id.

       The United States Supreme Court held in Payton v. New York, 445 U.S. 573 (1980),

that warrantless felony arrests in the home are prohibited by the Fourth Amendment, absent

probable cause and exigent circumstances.         Exigent circumstances are those requiring

immediate aid or action, and, while there is no definite list of what constitutes exigent

circumstances, several established examples include the risk of removal or destruction of

evidence, danger to the lives of police officers or others, and the hot pursuit of a suspect.

Steinmetz v. State, 366 Ark. 222, 225, 234 S.W.3d 302, 304 (2006).

       Appellant argues that Corporal Hargus entered his garage without probable cause or


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exigent circumstances in order to arrest him for a relatively minor offense. He argues that it

was determined in Norris that DWI was a minor offense for Fourth Amendment purposes and

that Hargus did not even have probable cause to arrest him for DWI prior to entering the

garage. Appellant contends that two exigent circumstances alleged by the State below—the

destruction of evidence and the danger of appellant returning to his car—were rejected in

Norris.

          In Norris, a citizen who observed the appellant driving erratically followed him home.

The witness reported his observations to the police. Thereafter, the police went to the

residence, gained entry, and arrested the appellant for DWI after locating him in his bedroom.

The supreme court held that the warrantless home arrest was unreasonable under these

circumstances. The Norris court relied on Welsh v. Wisconsin, 466 U.S. 740 (1984).

          In Welsh, a witness saw the appellant driving erratically and ultimately driving off the

road. The witness observed the driver abandon the car and walk away. He reported the

incident to the police, and the police located an address by checking the vehicle registration.

The police went to the address, entered the home, found the appellant in his bed, and arrested

him for DWI. Thus, the facts of the Norris and Welsh cases are clearly and strikingly

distinguishable from the case at bar.

          Probable cause to arrest is defined as “a reasonable ground for suspicion supported by

circumstances sufficiently strong in themselves to warrant a cautious man in believing that a

crime has been committed by the person suspected.” Hilton v. State, 80 Ark. App. 401, 405,

96 S.W.3d 757, 760 (2003). Probable cause to arrest does not require the quantum of proof


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necessary to support a conviction, and in assessing the existence of probable cause, the

appellate court’s review is liberal rather than strict. Id. We look to the facts within the

arresting officer’s knowledge—not his stated reasoning—to determine whether those facts are

sufficient to permit a person of reasonable caution to believe that an offense has been

committed. Banks v. State, 2010 Ark. App. 383.

       If a person knows that his immediate detention is being attempted by a duly authorized

law enforcement officer, it is the lawful duty of the person to refrain from fleeing, either on

foot or by means of any vehicle or conveyance. Ark. Code Ann. § 5-54-125(a) (Supp. 2011).

Although appellant was not charged with fleeing, Corporal Hargus’s testimony that appellant

ignored his blue lights, siren, and spot light provides probable cause that appellant committed

the offense of fleeing. Fleeing by means of any vehicle is considered a Class A misdemeanor,

for which the sentence shall not exceed one year. Ark. Code Ann. § 5-54-125(d)(1)(A); Ark.

Code Ann. § 5-4-401(b)(1) (Repl. 2013). However, the fleeing statute provides that a person

convicted of fleeing in a vehicle shall serve a minimum time in jail. Ark. Code Ann. § 5-54-

125(d)(1)(B).

       The Supreme Court held in Welsh that “the penalty that may attach to any particular

offense seems to provide the clearest and most consistent indication of the State’s interest in

arresting individuals suspected of committing that offense.” Welsh, 466 U.S. at 754 n.14.

Welsh involved first-offense DWI, which in Wisconsin was a noncriminal violation for which

no imprisonment was possible. The Norris court held that the penalties imposed for first-

offense DWI in Arkansas were sufficiently similar to those penalties in Welsh to conclude that


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the offense was a relatively minor offense in Fourth Amendment analysis. The Norris court

noted that while first-offense DWI carries a penalty of imprisonment from one day to one

year, the court may order public service in lieu of jail. Ark. Code Ann. § 5-65-111(a)(1)(B).

Fleeing, on the contrary, requires that the offender serve time in jail.

       The facts of this case are further distinguishable from Norris and Welsh because the

police here were in hot pursuit of a suspect. Appellant relies on Butler v. State, 309 Ark. 211,

829 S.W.2d 412 (1992), in arguing that hot pursuit involving a minor offense does not

constitute an exigent circumstance. The offense in Butler, however, was disorderly conduct,

which our supreme court noted was a Class C misdemeanor. Butler summoned the police

to his home and spoke with an officer on his porch before communication “deteriorated.”

Butler then re-entered his home and the officer followed, announcing that he was under

arrest. Our supreme court held that, under these circumstances, there is no exigent

circumstance that would allow the warrantless entry into the home for “what is concededly,

at most, a petty disturbance.” Id. at 217, 829 S.W.2d at 415. The circumstances and the

offenses involved here clearly distinguish this case from Butler.

       In addition to the traffic offenses and fleeing that Hargus personally observed, he had

a reasonable suspicion that appellant was driving while intoxicated, which justifies a stop

under Rule 3.1 of the Arkansas Rules of Criminal Procedure. Murrell v. State, 2011 Ark. App.

311. Hargus testified that appellant’s driving, the time of day, the day of the week, and the

previous complaints of parties in the general area formed his suspicion. Furthermore,

appellant had ignored Hargus’s efforts to get him to stop. When considering the totality of


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the circumstances, the State had a strong interest in precipitating appellant’s arrest.

       In reviewing the trial court’s denial of a motion to suppress evidence, we make an

independent examination based upon the totality of the circumstances and reverse only if the

decision is clearly against the preponderance of the evidence. Hilton v. State, 80 Ark. App.

401, 96 S.W.3d 757 (2003). We hold that, under the circumstances, the trial court’s decision

in concluding that the warrantless arrest was reasonable was not clearly against the

preponderance of the evidence. We affirm the denial of appellant’s motion to dismiss.

                                       II. Resisting Arrest

       A person commits the offense of resisting arrest if he or she knowingly resists a person

known by him or her to be a law enforcement officer effecting an arrest. Ark. Code Ann. §

5-54-103(a) (Repl. 2005). “Resists” means using or threatening to use physical force or any

other means that creates a substantial risk of physical injury to any person. Id.

       Appellant argues that there is no evidence that he resisted arrest by any means that

created a substantial risk of physical injury. The State contends that this specific argument was

not made below and is not preserved for appeal. We agree. In a nonjury trial, a motion for

dismissal shall be made at the close of all of the evidence and shall state the specific grounds

therefor. Ark. R. Crim. P. 33.1(b). Appellant made no argument below concerning the

sufficiency of the evidence to support a conviction for resisting arrest. We affirm.

       Affirmed.

       GLADWIN, C.J., and WOOD and BROWN, JJ., agree.

       PITTMAN and HIXSON, JJ., dissent.


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       KENNETH S. HIXSON, Judge, dissenting. I dissent from the majority opinion only

as it relates to the denial of Stutte’s motion to suppress because binding federal and state

supreme court case law mandates it. There is a clear line of demarcation between warrantless

arrests and arrests with a warrant. That clear line is the entrance to the home.

       I agree that Officer Hargis had a reasonable and constitutional basis for initiating a

traffic stop based on his observation of one or more misdemeanor violations. Stutte was cited

for careless and prohibited driving, although he was not cited for speeding. Hargis could

legitimately initiate a traffic stop in order to determine whether Stutte was driving while

intoxicated, although the officer candidly admitted that the evidence to support probable

cause for arrest did not develop until the officer entered Stutte’s home. The majority opinion

holds that Hargis could have cited Stutte for Class A misdemeanor fleeing, although Hargis

did not cite Stutte for fleeing. None of those misdemeanors, even if supported by probable

cause, would provide a constitutionally sound basis for warrantless entry into Stutte’s home

to search, seize, or arrest Stutte. Binding precedent requires this inescapable legal conclusion.

       The Fourth Amendment provides all citizens with protection from unreasonable

searches and seizures. The physical entry into the home is the “chief evil” against which the

wording of the Fourth Amendment is directed, and the principal means of protecting

that sacred space is the warrant requirement before entry into a citizen’s home for the purpose

of search or arrest. Welsh v. Wisconsin, 466 U.S. 740 (1984); Payton v. New York, 445 U.S.

573 (1980). The Fourth Amendment sets a “firm line at the entrance to the house” or

“home.” Welsh, supra; Payton, supra. The State bears the burden of establishing that any


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warrantless entry into the home is justified. Welsh, supra; Payton, supra; Norris v. State, 338

Ark. 397, 993 S.W.2d 918 (1999). Exceptions to the warrant requirement are few and

carefully delineated, and the State bears a heavy burden to overcome that requirement. Welsh,

supra; Payton, supra; Norris, supra. This is as it should be in a free society.

       Assuming arguendo that probable cause for arrest on any of the aforementioned

misdemeanors was in existence prior to Officer Hargis’s entry into Stutte’s home, the Fourth

Amendment would require the State to prove exigent circumstances to justify warrantless

entry into the home. Those exigent circumstances are simply not present.

       First-offense DWI in Arkansas, an unclassified misdemeanor, is considered a “serious”

but “minor” offense as it relates to the Fourth Amendment’s protections. Norris, supra. The

Norris court specifically held:

              It is true that this Court and the legislature of this State have recognized driving
       while intoxicated as a serious offense. The question then becomes whether, in the
       statutory scheme of criminal offenses, the seriousness of DWI, first offense, rises to the
       level that would warrant violation of the Fourth Amendment’s special protection
       afforded to the individual in his home, as articulated in Payton, supra, and Welsh. We
       hold that it does not.

338 Ark. at 403, 993 S.W.2d at 922.

       The gravity of the crime is an important consideration when deciding whether exigent

circumstances are present, and the supreme court has previously held that first-offense

misdemeanor DWI does not rise to the level required to do away with the warrant

requirement. Norris, supra. Once a suspected impaired driver is in the home and out of his

vehicle, the State’s interest in avoiding the destruction of evidence (blood-alcohol-level

dissipation) and public safety (the driver potentially returning to his vehicle to reenter the

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public roadway as a safety hazard) do not qualify as “exigent circumstances” for purposes of

doing away with the requirement of a warrant before entry. Norris, supra. “Hot pursuit” is

the only other potential exigent circumstance that would support entry into the home

without a warrant. Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). “Hot pursuit” is

not a valid exigency when the offense is “minor,” nor does a valid exigency arise simply by

the existence of probable cause to believe that a “serious” crime has been committed. Id.

       The majority herein distinguishes the pertinent precedents on their facts; however, I

cannot distinguish those same precedents on their constitutional principles.

       The police officers had other legitimate options readily available. Specifically, the

police officers could have obtained an arrest warrant from the appropriate judge and returned

to Stutte’s home to effectuate an arrest with a warrant. This is precisely the available option

discussed by the Arkansas Supreme Court in Butler. The United States Supreme Court in

Welsh held that:

       Before agents of the government may invade the sanctity of the home, the burden is
       on the government to demonstrate exigent circumstances that overcome
       the presumption of unreasonableness that attaches to all warrantless home entries.
       When the government’s interest is only to arrest for a minor offense, the presumption
       of unreasonableness is difficult to rebut, and the government usually should be allowed
       to make such arrests only with a warrant issued upon probable cause by a neutral and
       detached magistrate.

466 U.S. at 750.

       “Regardless of how brief or slight the intrusion, or how weighty the public interest,

‘an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely

at the unfettered discretion of officers in the field.’” State v. Allen, 2013 Ark. 35, at 5, ___


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S.W.3d ___, ___ (citing Brown v. Texas, 443 U.S. 47 (1979)). However noble the law

enforcement officer’s intentions or distasteful Stutte’s behavior, we are duty-bound to uphold

the Constitution and to adhere to binding Arkansas and United States Supreme Court

precedent.

       For the foregoing reasons, I dissent.

       PITTMAN, J., joins.

       Taylor Law Partners, LLP, by: William B. Putman, for appellant.

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




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