Pubdate: Fri, 03 May 2013
Source: Arkansas Democrat-Gazette (Little Rock, AR)
Copyright: 2013 Arkansas Democrat-Gazette, Inc.
Contact: http://www2.arkansasonline.com/contact/voicesform/
Website: http://www2.arkansasonline.com/
Details: http://www.mapinc.org/media/25
Author: Sean Beherec
Page: 2B

DRUG DOG'S ALERT SETS OFF DEBATE IN SUPREME COURT

Interstate 40 Search at Issue

An Arkansas State Police drug dog showing interest in a vehicle but
not expressly indicating the presence of drugs was not enough probable
cause to search it for contraband, a Little Rock attorney told the
Arkansas Supreme Court on Thursday.

Robert Golden told the court that the Lonoke County Circuit Court
erred in denying a motion to suppress evidence in a bench trial that
led to Ronald Jackson's conviction of possession of a controlled
substance. Jackson was sentenced to five years in prison.

Jackson was a passenger in a pickup that was pulled over on Interstate
40 in Lonoke County by an Arkansas State Police trooper Oct. 26, 2010,
for an improper lane change and following too closely. While speaking
with the driver and Jackson, the trooper noticed a "big road atlas" in
the truck, which he said was "kind of suspicious," and some food
wrappers, according to court filings.

Both men told the trooper that they and another passenger were
returning from a trip to Dallas.

The trooper returned to his vehicle to run the driver's licenses
belonging to both men and began writing a warning for the driver. As
the trooper waited for the results, he asked if he could search the
vehicle, and Jackson refused.

Golden said the traffic stop had concluded by the time the trooper
asked to search the vehicle and that there were no "criminal
indicators" that would have led the trooper to believe there were
drugs inside. He said the men should have received a warning and been
released instead of being detained for further investigation.

The trooper deployed his drug dog, which showed some interest in the
vehicle, but Golden argued that the food wrappers could have attracted
the animal. The canine did not sit or lie down to indicate the
presence of drugs, but did provide a "profound alert," he said.

The dog's interest in the pickup and its contents raised a red flag,
the trooper said.

Golden said an expert testified for the defense at the trial that the
dog should have been directed to indicate whether there were drugs in
the vehicle.

"That initial smell they could be smelling could be anything. You
don't know that he's smelling narcotics until he indicates because
that's when he thinks he's getting that ball. ... If he smells a food
wrapper, if he smells another dog, if he smells something else, he's
not going to indicate," Golden said.

Assistant Attorney General Lauren Heil said the testimony of the
trooper during the trial that the dog "profoundly alerted" carried
"significant weight" in determining probable cause. Heil said an alert
by a drug dog was sufficient probable cause and added that the trooper
had "reasonable suspicion" that a crime was present.

But Justice Donald Corbin questioned whether the criminal indicators
cited by the trooper - the road atlas and food wrappers - were enough
to believe that there was criminal behavior afoot.

"With these indicators, there's not a soccer mom in this state that
would avoid being arrested," Corbin said.

The court also heard arguments over whether to suppress a statement
Jackson made to police at the police station after his arrest.

The trial court threw out a statement Jackson made admitting to the
presence of marijuana as the trooper searched the vehicle, because the
trooper began to interrogate him before acknowledging his Miranda
rights. Golden said Jackson's later confession at the police station
also was tainted and inadmissible, even though it came after he had
been informed of his rights.

A decision on the case will be released at a later
date.

In other business, the court issued an opinion reversing an Arkansas
Court of Appeals decision denying nursing-care services to a former
Little Rock Convention and Visitors Bureau employee who suffered a
work-related brain injury in April 1991.

The court found that the services requested by the family of David
Pack were reasonable and met the "nursing services" requirements
defined by the law.

In a separate opinion, the court reversed and remanded a Washington
County Circuit Court's order denying Gregory Christopher Decay's
petition for post-conviction relief. Decay was convicted of two counts
of capital murder and sentenced to death.

The Supreme Court found the lower court had not specifically addressed
all of the points in Decay's appeal and instructed the judge to issue
a new final order addressing all of the defendant's objections.

The court also announced four appointments to two Supreme Court
committees:

Judge Ann Hudson of Forrest City was appointed to a six-year term on
the Arkansas Judges and Lawyers Assistance Program Committee. Hudson
replaces Judge Barbara Halsey of Paragould.

Judge John Robbins of Hot Springs, Rebecca Hattabaugh of Fort Smith
and Diane Holitik of Little Rock were each appointed to a threeyear
term on the Arkansas Continuing Legal Education Board. They replace
Judge Patricia James of Little Rock, Chris Parks of Fort Smith and J.
Cotten Cunningham of Little Rock.
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