                                   Cite as 2015 Ark. 152

                SUPREME COURT OF ARKANSAS
                                     No.   CR-14-1104

JORDAN ARIE SCHNEIDER                            Opinion Delivered   April 9, 2015
                   APPELLANT
                                                 APPEAL FROM THE BENTON
V.                                               COUNTY CIRCUIT COURT
                                                 [NO. CR-12-1434]

STATE OF ARKANSAS                                HONORABLE ROBIN F. GREEN,
                                 APPELLEE        JUDGE

                                                 REVERSED AND REMANDED;
                                                 COURT OF APPEALS OPINION
                                                 VACATED.


                           ROBIN F. WYNNE, Associate Justice


       Jordan Arie Schneider appeals from his convictions on charges of possession of a

controlled substance and possession of drug paraphernalia. He argues that the circuit court

erred by denying his motion to suppress evidence seized following a stop of his vehicle that

he claimed was illegal. Our court of appeals affirmed the decision of the circuit court.

Schneider v. State, 2014 Ark. App. 711, 492 S.W.3d 601. Appellant petitioned this court for

review, which was granted. When we grant a petition for review, we treat the appeal as if

it had been originally filed in this court. Fowler v. State, 2010 Ark. 431, 371 S.W.3d 677.

Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(e) (2014). We reverse and

remand the circuit court’s sentencing order and vacate the opinion of the court of appeals.

       Appellant pled guilty to charges of possession of a controlled substance and possession
                                    Cite as 2015 Ark. 152

of drug paraphernalia in the Benton County District Court. The charges arose from a traffic

stop of appellant’s vehicle on November 24, 2011. Appellant appealed to the Benton County

Circuit Court. In the circuit court, appellant filed a motion to suppress evidence seized by

police, alleging that the stop of his vehicle was unlawful.

       At the suppression hearing, Dustin Wiens with the Rogers Police Department testified

that he was at the intersection of North Second Street and Wood Street at approximately 1:00

a.m. on November 24, 2011, when appellant drove past him. He pulled behind appellant and

ran the vehicle’s license plate. The license plate returned as being registered to a blue 1992

Chevrolet Camaro. Officer Wiens testified that he noticed that the car was red when it passed

him and saw that the bumper was black while he was following it. Based solely on the color

discrepancy, Officer Wiens stopped the vehicle and made contact with appellant. He testified

that he performed the stop in order to investigate further, check the vehicle-identification

number, and determine whether the vehicle had been painted or was stolen. Appellant

introduced photographs of the vehicle that Officer Wiens described as showing a car with a

red door, black bumper, and other parts that were painted blue. Officer Wiens denied seeing

any blue on the car before he stopped it. He repeated on cross-examination that the color

of the vehicle was the only reason that he initiated the traffic stop.

       The trial court denied appellant’s motion to suppress. Appellant subsequently entered

a conditional plea of guilty to the charges of possession of a controlled substance and




                                               2
                                     Cite as 2015 Ark. 152

possession of drug paraphernalia pursuant to Arkansas Rule of Criminal Procedure 24.3.1 He

was sentenced to ten days in jail, with seven days suspended, and assessed fines, fees, and court

costs on the charge of possession of a controlled substance. He was sentenced to ten days in

jail, with all ten days suspended, and assessed fines, fees, and costs on the charge of possession

of drug paraphernalia. This appeal followed.

       When reviewing a circuit court’s denial of a motion to suppress evidence, the appellate

court conducts 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 the inferences drawn by the trial

court. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. A finding is clearly erroneous, even

if there is evidence to support it, when the appellate court, after reviewing the entire

evidence, is left with the definite and firm conviction that a mistake has been made. Id. We

defer to the circuit court’s superior position in determining the credibility of the witnesses and

resolving any conflicts in the testimony. Id.

       Appellant argues that a discrepancy between the color of a vehicle and the color listed

on the registration, standing alone, is insufficient to give rise to a reasonable suspicion of

criminal activity necessary to justify the stop of his vehicle by Officer Wiens. Pursuant to


       1
        With the approval of the court and the consent of the prosecuting attorney, a
defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the
right, on appeal from the judgment, to review an adverse determination of a pretrial motion
to suppress seized evidence or a custodial statement. Ark. R. Crim. P. 24.3(b)(i) (2014).




                                                3
                                     Cite as 2015 Ark. 152

Arkansas Rule of Criminal Procedure 3.1 (2014),

       [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
       committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger
       or 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.

“Reasonable suspicion” is defined as a suspicion based on facts or circumstances which of

themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which

give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an

imaginary or purely conjectural suspicion. Ark. R. Crim. P. 2.1 (2014). Whether there is

reasonable suspicion depends upon whether, under the totality of the circumstances, the police

have “specific, particularized, and articulable reasons indicating that the person may be

involved in criminal activity.” Menne v. State, 2012 Ark. 37, at 6, 386 S.W.3d 451, 455

(quoting Malone v. State, 364 Ark. 256, 263, 217 S.W.3d 810, 814 (2005)).

       In making his argument, appellant urges this court to adopt the reasoning utilized by

a district of the Florida Court of Appeals in Van Teamer v. State, 108 So. 3d 664 (Fla. App.

Dist. 2013). In Van Teamer, the Florida appellate court held that a discrepancy between the

color of a vehicle and the color listed on the registration, standing alone, does not justify a

traffic stop. Appellant also directs this court to the decision in United States v. Uribe, 709 F.3d

646 (7th Cir. 2013), in which the United States Court of Appeals for the Seventh Circuit held

that no reasonable suspicion of vehicle theft attached to a completely lawful color discrepancy

in the absence of any evidence suggesting otherwise.



                                                4
                                    Cite as 2015 Ark. 152

       In arguing that the decision of the circuit court should be affirmed because the color

discrepancy gave rise to a reasonable suspicion of criminal activity, the State relies on the

decision of the Georgia Court of Appeals in Andrews v. State, 658 S.E.2d 126 (Ga. Ct. App.

2008) as well as the decision of the Indiana Court of Appeals in Smith v. State, 713 N.E.2d

338 (Ind. App. 1999). In both Andrews and Smith, the appellate court held that a color

discrepancy gave rise to a reasonable suspicion of criminal activity sufficient to justify a stop

of the vehicle because the discrepancy was an indication that the vehicle may have been

retagged or stolen.

       We conclude that the decisions in Van Teamer and Uribe are more persuasive given the

facts presented in this case. In Van Teamer, the court noted that there was no requirement

under Florida law for a registration to be updated to reflect a change in a vehicle’s color. In

affirming the court of appeals decision, the Florida Supreme Court stated that “the color

discrepancy here is not ‘inherently suspicious’ or ‘unusual’ enough or so ‘out of the ordinary’

as to provide an officer with a reasonable suspicion of criminal activity, especially given the

fact that it is not against the law in Florida to change the color of your vehicle without

notifying the DHSMV.” State v. Teamer, 151 So. 3d 421, 427 (Fla. 2014).

       Arkansas, like Florida, has no requirement that the owner of a vehicle change the

registration to reflect the color of a vehicle in the event it is painted or the color otherwise

altered.2 It is also not prohibited in Arkansas to replace portions of a vehicle’s body with new


       2
       The State asserts that Officer Wiens had probable cause to stop the vehicle pursuant
to Arkansas Code Annotated section 27-14-306(a) (Repl. 2008), which prohibits the display


                                               5
                                     Cite as 2015 Ark. 152

body pieces that do not match the vehicle’s original color. The innocence of the conduct,

however, is not determinative, as the United States Supreme Court has stated, in connection

with a reasonable-suspicion inquiry, that “the relevant inquiry is not whether particular

conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types

of noncriminal acts.” United States v. Sokolow, 490 U.S. 1, 10 (1989).

       Here, although Officer Wiens testified that he would conduct a stop in the event of

a color discrepancy to determine whether the vehicle was stolen, he did not testify that, in his

experience, car thieves would change the color of a vehicle after it had been stolen or that a

discrepancy in color was indicative of any type of criminal conduct. There was, therefore,

no evidence before the circuit court that a color discrepancy was indicative of any criminal

activity that would possibly allow otherwise innocent behavior to give rise to a reasonable

suspicion of criminal activity. See Uribe, 709 F.3d at 652 (stating that the government had

provided no information on the correlation between repainted vehicles and stolen ones).

       It is clear, based on the testimony at the suppression hearing, that Officer Wiens was

acting on a purely conjectural suspicion that appellant was engaged in illegal activity at the

time he initiated the traffic stop. Thus, the stop was not based on a reasonable suspicion that

appellant was engaged in criminal activity, and the circuit court erred by denying appellant’s

motion to suppress. As a result, we reverse and remand the sentencing order of the circuit


on a vehicle of a registration plate not issued for the vehicle. However, a change in color need
not be reflected on the registration linked to the plate. Also, Officer Wiens did not testify that
he believed that a violation of section 27-14-306(a) had occurred when he stopped the
vehicle. Therefore, Officer Wiens did not have probable cause to stop appellant’s vehicle.


                                                6
                                     Cite as 2015 Ark. 152

court.

         Reversed and remanded; court of appeals opinion vacated.

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

         Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.




                                                7
