                                Cite as 2015 Ark. App. 706


                ARKANSAS COURT OF APPEALS

                                      DIVISION III
                                     No. CR-14-980

 JEREMY EDWARD WHALEN                           Opinion Delivered:   December 9, 2015
                  APPELLANT
                                                APPEAL FROM THE SEBASTIAN
 V.                                             COUNTY CIRCUIT COURT,
                                                FORT SMITH DISTRICT
 STATE OF ARKANSAS                              [NO. MC-13-202]
                                 APPELLEE
                                                HONORABLE STEPHEN TABOR,
                                                JUDGE

                                                REVERSED AND DISMISSED



                          WAYMOND M. BROWN, Judge

       Appellant appeals from the circuit court’s judgment finding him guilty of driving

while intoxicated—first offense. On appeal, appellant argues that 1) the Fourth Amendment

to the United States Constitution, along with Article II, Section 15 of the Arkansas

Constitution, requires reversal of his conviction based on the illegally conducted sobriety

checkpoint; and 2) the circuit court erred in its failure to recognize the lack of probable

cause to support any further roadside detention of appellant. We reverse.

       On September 20, 2012, appellant encountered a sobriety checkpoint being

conducted by the Arkansas State Police on Interstate 540. He was arrested there and later

charged with driving while intoxicated—first offense. A trial on the matter was held on July

29, 2014. The circuit court issued its ruling finding defendant guilty in a judgment entered

on July 31, 2014.
                                  Cite as 2015 Ark. App. 706

       This timely appeal followed.

       When making his initial motion below, appellant’s counsel stated that “at this point

I have a motion, and that’s that this is an illegal roadblock.” Then, when the State rested,

he stated “we rest just with our very strong objection to the roadblock. And, again, cite a

litany of cases, but for Arkansas State versus Alan [sic], 2313 [sic] Ark 35, which quotes Price

v. Delaware, Brown v. Texas.” He also cited Delaware v. Prouse 1 and Mullinax v. State. 2

Appellant’s counsel moved that the roadblock was illegal and therefore unconstitutional. He

did not make any specific arguments involving the words suppress or dismiss, or any

variation thereof. There was no prior hearing. Furthermore, it appears that even the circuit

court was not clear on what type of motion appellant was making for it wrote in its judgment

that “[t]he motions to suppress and/or dismiss of Defendant are denied.” On the record

before this court, there is not sufficient evidence to determine whether appellant made a

motion to suppress the evidence or a motion to dismiss the case, or both. But the circuit

court denied both in its order; accordingly, we address both.

       When reviewing a circuit court’s denial of a motion to suppress, we make an

independent determination based on the totality of the circumstances. 3 We defer to the




       1
           440 U.S. 648 (1979).
       2
           53 Ark. App. 176, 920 S.W.2d 503 (1996).
       3
       Jacobs v. State, 2013 Ark. App. 177, at 5, 427 S.W.3d 83, 87 (citing Gilbert v. State,
2010 Ark. App. 857, 379 S.W.3d 774).

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circuit court’s credibility and weight-of-the-evidence determinations, and we reverse only

if the court’s decision is clearly against the preponderance of the evidence. 4

       A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial,

is considered a challenge to the sufficiency of the evidence. 5 We will affirm a circuit court’s

denial of the motion if there is substantial evidence, either direct or circumstantial, to

support the verdict. 6 In reviewing the sufficiency of the evidence, we review all the

evidence, including any that was erroneously admitted. 7 Substantial evidence is evidence

forceful enough to compel a conclusion one way or the other beyond suspicion or

conjecture. 8 This court views the evidence in the light most favorable to the verdict, and

only evidence supporting the verdict will be considered. 9

       A Fourth Amendment seizure occurs when a vehicle is stopped at a roadblock or

checkpoint. 10 The question then becomes whether such a seizure is reasonable under the




       4
           Id.
       5
       Stewart v. State, 2010 Ark. App. 9, at 2, 373 S.W.3d 387, 389 (citing Cora v. State,
2009 Ark. App. 431, 319 S.W.3d 281).
       6
           Id. (citing Cora, supra).
       7
           Id. (citing LaRue v. State, 34 Ark. App. 131, 806 S.W.2d 35 (1991)).
       8
         Foster v. State, 2015 Ark. App. 412, at 4, 467 S.W.3d 176, 179 (citing Thornton v.
State, 2014 Ark. 157, 433 S.W.3d 216).
       9
           Id.
       10
          Jacobs, 2013 Ark. App. 177, at 6, 427 S.W.3d at 87 (citing Mich. Dep’t of State Police
v. Sitz, 496 U.S. 444 (1990); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997)).

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Fourth Amendment. 11 The permissibility of vehicle stops made on less than reasonable

suspicion of criminal activity must be judged in each case by balancing the effect of the

intrusion on the individual’s Fourth Amendment rights against the promotion of a legitimate

government interest. 12 There is no doubt as to the magnitude of the State’s interest in

eradicating drunk driving. 13 The United States Supreme Court has stated the following in

Brown v. Texas regarding this balancing test:

       Consideration of the constitutionality of such seizures involves a weighing of the
       gravity of the public concerns served by the seizure, the degree to which the seizure
       advances the public interest, and the severity of the interference with individual
       liberty.

       A central concern in balancing these competing considerations in a variety of settings
       has been to assure that an individual’s reasonable expectation of privacy is not subject
       to arbitrary invasions solely at the unfettered discretion of officers in the field. To this
       end, the Fourth Amendment requires that a seizure must be based on specific,
       objective facts indicating that society’s legitimate interests require the seizure of the
       particular individual, or that the seizure must be carried out pursuant to a plan
       embodying explicit, neutral limitations on the conduct of individual officers. 14

Some of the various factors to be considered in applying the balancing analysis include the

supervision of the individual officers in the field, the limited discretion of the officers in

stopping vehicles, the amount of interference with legitimate traffic, the subjective intrusion




       11
            Id. (citing Mullinax, supra).
       12
         Partee v. State, 2010 Ark. App. 805, at 5, 379 S.W.3d 82, 84 (citing Camp v. State,
26 Ark. App. 299, 764 S.W.2d 463 (1989)).
       13
          Mullinax, 327 Ark. at 46, 938 S.W.2d at 804 (citing Mich. Dep’t of State Police v.
Sitz, 496 U.S. 444, 451 (1990)).
       14
            443 U.S. 47, 50–51 (1979) (internal citations omitted).
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on the part of the travelers, the supervisory control over the operation, and the availability

of a less intrusive means of promoting the legitimate government interest. 15

       Appellant argues that the sobriety checkpoint that led to his arrest was

unconstitutional and unlawful because it was conducted in an illegal manner. The State

argues that compliance with Arkansas State Police (ASP) policy and procedures, as was

indicated on the ASP Sobriety Checkpoint Plan, is sufficient to support a finding that the

checkpoint was conducted in a constitutionally acceptable manner. However, the State

provides no authority to support this argument. We agree with appellant that this sobriety

checkpoint was conducted in an illegal manner.

       Corporal Dwight Lee testified that “[s]ometimes roadblocks are assigned and if [the

supervisors] don’t assign them, I will make a call and say, you know, we’re going to do a

checkpoint.” He testified that the supervisors “don’t actually know where” the checkpoint

is. He stated that “[i]n this case, it was most likely [his] discretion” in setting up the

checkpoint. He described himself as “an officer in the field” and stated that “[i]t is the officer

in the field using his discretion as to what would happen at the roadblock.” He further noted

that “as far as dealing with individuals we come in contact with, traffic flow, location, and

times, all of that is the officer in the field.” They normally would only call the supervisor if

there was some major occurrence like a collision or chase.

       Corporal Lee testified that the officers do not keep records of the number of cars

they stop, only “if [they] wrote a ticket, or anything like that.” Supervisors “[n]ormally”


       15
         Partee, 2010 Ark. App. 805, at 5–6, 379 S.W.3d at 85 (citing Theresa Ludwig
Kruk, Annotation, Validity of Routine Roadblocks by State or Local Police for Purpose of
Discovery of Vehicular or Driving Violations, 37 A.L.R.4th 10 (1985)).
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received information on the checkpoint after the checkpoint had been completed. Corporal

Lee stated that supervisors would not have any direct input on the plan, simply being

notified after. When questioned by the circuit court, Corporal Lee agreed that calling up

officers and telling them they were going to set up a checkpoint was “all there [was]” to the

procedure for the checkpoint; that he did not go over the plan with the officers or talk with

them about it beyond the intended duration of the checkpoint; and that they do not even

mention checkpoints to the supervisors until after they have been completed because the

supervisors expect the checkpoints to be done. He restated that he sends the paperwork in

after the checkpoint. Furthermore, he agreed that the “main purpose” of setting up a

checkpoint was to keep the officers from getting in trouble.

       Trooper Brandon Margis testified that sometimes the officers received emails from

the supervisor instructing them to set up a checkpoint, but sometimes the officers in the

field—sometimes including sergeants, but not always—just got together and decided to have

a checkpoint. He testified that they intended to stop every vehicle, but would use their

discretion to allow vehicles to “go through” when traffic was backed up until it was no

longer backed up.

       While the plan is not required to be written, there must be a plan. 16 Officer testimony

appears to belie the notion that there was a plan. Their testimony purports that there was a

plan; however, there was no supervision over the checkpoint and there was no limitation

on the discretion of the officers in the field. Furthermore, while only a factor and not a



       16
            Mullinax, 327 Ark. at 49, 938 S.W.2d at 806.

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requirement, the officer’s failure to record how many vehicles they came in contact with

beyond those ticketed or arrested prevents any possible determination on the effectiveness

of the checkpoints. 17

       The State says in its brief that Corporal Lee did not brief the officers because the

same procedures were always followed. The State then gives a procedure that was followed.

The State quotes the Sobriety Checkpoint Plan form submitted for the September 20, 2012

checkpoint to support the procedure it outlined. However, this document was a form to

be completed by an officer for a checkpoint. The State failed to direct this court to any

evidence in the record—documentary or testimonial—regarding official department

procedure for police checkpoints and this court found none in the record. Accordingly, we

cannot say that the September 20, 2012 checkpoint was conducted according to a plan or

that it was conducted in a manner exhibiting explicit, neutral limitations on the officer’s

conduct. The circuit court erred in finding that the checkpoint was constitutional.

Accordingly, we reverse the circuit court’s denial of appellant’s motion to suppress.

       The only evidence at trial was specific to the unconstitutional checkpoint and the

fruits thereof. Because there was no other evidence to support the conviction, we also

reverse the circuit court’s denial of appellant’s motion to dismiss.

       Because we reverse on appellant’s first point on appeal, we do not address his second

argument.

       Reversed and dismissed.

       VAUGHT, J., agrees.


       17
            Id., 327 Ark. at 47, 983 S.W.2d at 804 (citing Sitz, 496 U.S. at 454–55).
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       GRUBER, J., concurs.

       RITA GRUBER, Judge, concurring. I agree with the majority’s decision to reverse

this case because it was error for the circuit court to find that the checkpoint was

constitutional. However, I respectfully concur because, in my view, the checkpoint was

conducted according to a plan. The constitutionality of a checkpoint does not depend on

a specific, written plan or program. Jacobs v. State, 2013 Ark. App. 177, at 7, 427 S.W.3d

83, 87. In Partee v. State, this court affirmed the denial of a motion to suppress. 2010 Ark.

App. 805, 379 S.W.3d 82. The police did not have a written policy on checkpoints, did

not account for how many cars were stopped, and did not publicize the checkpoint. Id.

However, the checkpoint was visible based on the officers’ use of police lights and reflective

safety vests, and the police department generated a memo detailing the checkpoint plan after

the checkpoint took place. Id.

       Here, testimony from Senior Corporal Dwight Lee indicated that the identity of

the troopers and the presence of their vehicles were obvious due to their reflective vests,

flashlights, and flashing blue lights. Corporal Lee also testified that a plan was followed

and, similar to Partee, after the checkpoint took place, a written copy of the sobriety-

checkpoint plan was generated and was “signed off on” by a supervisor. The ASP

Sobriety Checkpoint Plan, which was generated following the checkpoint and signed by

Sergeant Jason W. Aaron is included in the State’s supplemental addendum.

       The Sobriety Checkpoint Plan specifically states that officers must advise the drivers

that they have entered an Arkansas State Police sobriety checkpoint, check the vehicle

operator’s license and registration, and direct motorists suspected of being impaired to

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move their vehicles to a designated pull-off area. The plan states that officers must

designate a safe site with ample space for detained motorists, use sufficient lighting, wear

an Arkansas State Police high-visibility reflective vest, avoid lane blockage or potential

traffic backup for prolonged periods of time, and comply with the Arkansas State Police

Policy and Procedures Manual. Therefore, I cannot say that the checkpoint was not

conducted according to a plan.

       As stated by the majority, these are some of the factors to be considered in applying

the balancing analysis: the supervision of the individual officers in the field, the limited

discretion of the officers in stopping vehicles, the amount of interference with legitimate

traffic, the subjective intrusion on the part of the travelers, the supervisory control over the

operation, and the availability of a less intrusive means of promoting the legitimate

government interest. Partee, 2010 Ark. App. 805, at 5–6, 379 S.W.3d at 85. The checkpoint

took place on the Exit 11 exit ramp on Interstate 540. Corporal Lee testified that every

vehicle coming off the ramp was stopped and checked “unless traffic [got] backed up.”

Corporal Lee described himself as an “officer in the field” and testified that the “traffic flow”

was left to the discretion of the officer in the field. He testified that it is “the officer in the

field using his discretion as to what would happen on the roadblock” and that a supervisor

is called only if there is “something major like a collision or chase.” This means that whether

the stop was made depended only on the law-enforcement officer’s discretion based on his

or her subjective assessment of the level of traffic. “[T]he Fourth Amendment requires

objective facts supporting the stop or a plan embodying explicit, neutral limitations.” State

v. Allen, 2013 Ark. 35, at 5, 425 S.W.3d 753, 757; see also Brown v. Texas, 443 U.S. 47, 51

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(1979). An individual’s reasonable expectation of privacy is not subject to arbitrary invasions

solely at the unfettered discretion of officers in the field. Allen, 2013 Ark. 35, at 5, 425

S.W.3d at 757. Thus, in my view, although the checkpoint was conducted according to a

plan, the unfettered discretion of the officers was such that the plan did not embody the

explicit and neutral limitations required by the Fourth Amendment. I would reverse based

on the lack of supervisory control, the interference with legitimate traffic, and the level of

discretion given to the officers in the field. Therefore, I concur.

       Johnny Clay Collins II, for appellant.

       Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.




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