Stewart v. State
In Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), a Little Rock police officer observed the appellant, Kathy Stewart, standing in a high-drug-traffic area at 1:45 a.m. and stopped to question her. Because appellant would not keep her hands out of her pockets after he asked her to do so, the officer conducted a pat-down search.
This search revealed thirty-five one dollar bills, a one-hundred dollar bill, and a matchbox; the officer opened the matchbox and found a substance later determined to be cocaine.
In determining that the initial encounter with Stewart was unconstitutional under Rule 3.1 of the Arkansas Rules of Criminal Procedure, our supreme court referred to the factors listed in Ark. Code Ann. 16-81-203 (1987) used to determine whether an officer has grounds to "reasonably suspect." These factors are:
(1) The demeanor of the suspect;
(2) The gait and manner of the suspect;
(3) Any knowledge the officer may have of the suspect's background or character;
(4) Whether the suspect is carrying anything, and what he is carrying;
(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors;
(6) The time of the day or night the suspect is observed;
(7) Any overheard conversation of the suspect;
(8) The particular streets and areas involved;
(9) Any information received from third persons, whether they are known or unknown;
(10) Whether the suspect is consorting with others whose conduct is "reasonably suspect";
(11) The suspect's proximity to known criminal conduct;
(12) Incidence of crime in the immediate neighborhood;
(13) The suspect's apparent effort to conceal an article; and
(14) Apparent effort of the suspect to avoid identification or confrontation by the police.
The Court held that there was nothing about Stewart's actions or demeanor that indicated that she was involved in any illegal activity, and the only justification for stopping her was that she was "standing in the wrong place at the wrong time." 332 Ark. at 146, 964 S.W.2d at 797.
The supreme court disagreed with the State's contention that a suppression issue raised in a bench trial had not been preserved for appeal because the appellant had made no objection when the drugs were offered into evidence.
The court held that during a bench trial it was not necessary to make a contemporaneous objection when the contested evidence is offered if the appellant had renewed a previously filed motion to suppress at the outset of trial, and the trial court agreed to consider the motion simultaneously with the evidence on the merits.