{ "id": 1453601, "name": "Billy Ray JOHNSON v. STATE of Arkansas", "name_abbreviation": "Johnson v. State", "decision_date": "1994-12-19", "docket_number": "CR 94-615", "first_page": "78", "last_page": "87", "citations": [ { "type": "official", "cite": "319 Ark. 78" }, { "type": "parallel", "cite": "889 S.W.2d 764" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "407 U.S. 143", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9137003 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/407/0143-01" ] }, { "cite": "34 Ark. App. 227", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140955 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/34/0227-01" ] }, { "cite": "496 U.S. 325", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12122945 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/496/0325-01" ] }, { "cite": "462 U.S. 213", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187462 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/462/0213-01" ] }, { "cite": "15 Ark. App. 292", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142287 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/15/0292-01" ] }, { "cite": "392 U.S. 40", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167951 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/us/392/0040-01" ] }, { "cite": "21 Ark. App. 10", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136231 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/21/0010-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "469 U.S. 221", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959006 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/469/0221-01" ] }, { "cite": "316 Ark. 360", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907841 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0360-01" ] }, { "cite": "315 Ark. 143", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910458 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/315/0143-01" ] }, { "cite": "316 Ark. 447", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907744 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0447-01" ] }, { "cite": "307 Ark. 452", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902467 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "453" }, { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/ark/307/0452-01" ] }, { "cite": "46 Ark. App. 67", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137367 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark-app/46/0067-01" ] }, { "cite": "459 U.S. 1201", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6544770, 6544665, 6544716, 6544501, 6544822, 6544439, 6544537, 6544571, 6544636, 6544477, 6544894 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/us/459/1201-09", "/us/459/1201-07", "/us/459/1201-08", "/us/459/1201-03", "/us/459/1201-10", "/us/459/1201-01", "/us/459/1201-04", "/us/459/1201-05", "/us/459/1201-06", "/us/459/1201-02", "/us/459/1201-11" ] }, { "cite": "275 Ark. 275", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753652 ], "weight": 2, "year": 1982, "opinion_index": 1, "case_paths": [ "/ark/275/0275-01" ] }, { "cite": "304 Ark. 610", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880847 ], "weight": 2, "year": 1991, "opinion_index": 1, "case_paths": [ "/ark/304/0610-01" ] }, { "cite": "496 U.S. 325", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12122945 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "332" } ], "opinion_index": 1, "case_paths": [ "/us/496/0325-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/us/392/0001-01" ] } ], "analysis": { "cardinality": 938, "char_count": 17853, "ocr_confidence": 0.857, "pagerank": { "raw": 7.259244762335987e-08, "percentile": 0.43267696301985176 }, "sha256": "3424523e649eb597a2388bdb5af24ecbacf2eef60ad5c095dc03776f107bd910", "simhash": "1:256c0c0e41f7367e", "word_count": 2914 }, "last_updated": "2023-07-14T15:29:57.133828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, C.J., Dudley and Newbern, JJ., dissent.", "Dudley and Newbern, JJ\u201e join in this dissent." ], "parties": [ "Billy Ray JOHNSON v. STATE of Arkansas" ], "opinions": [ { "text": "Steele Hays, Justice.\nThis case is before us on review of a decision by the Arkansas Court of Appeals, following our granting of the state\u2019s petition for certiorari. We accepted review because the en banc court of appeals\u2019 vote to deny a rehearing was three-to-three and the case requires resolution for the correct and uniform administration of the criminal law. A single point on review is presented by the State \u2014 whether the trial court was correct in refusing to suppress evidence obtained during an investigatory stop of appellant Billy Ray Johnson\u2019s vehicle. We conclude that the trial court ruled correctly and we affirm.\nOn March 2, 1994, the court of appeals handed down an unpublished decision in Johnson v. State, No. CACR 93-497, in which a three-member panel reversed Billy Ray Johnson\u2019s conviction on a charge of possession of methamphetamine with intent to deliver, on the premise that the trial court should have granted his motion to suppress evidence because the investigatory stop of his vehicle and the subsequent search and seizure were predicated on an anonymous tip. Johnson had entered a conditional guilty plea, contingent on the outcome of his appeal of the trial court\u2019s denial of the motion to suppress, pursuant to A.R.Cr.P. Rule 24.3(b).\nThe state requested a rehearing, which was denied by a three-to-three division of the court of appeals sitting en banc. See Johnson v. State, 46 Ark. App. 67, 876 S.W.2d 607 (1994). The state filed a petition for certiorari, citing Ferguson v. Order of United Commercial Travelers of America, 307 Ark. 452, 821 S.W.2d 30 (1991). In that case we held that:\nWe have traditionally granted certiorari for the review of tie-vote court of appeals\u2019 decisions that affirm a judgment of the trial court. This was the first case in which we were asked to grant certiorari because of a tie vote denying rehearing. We concluded that the same policy should be applicable in both situations and granted certiorari.\n307 Ark. at 453, 821 S.W.2d at 31.\nThis court granted the petition for certiorari on June 6, 1994. When we review a three-to-three decision of the court of appeals under Ark. Sup. Ct. R. l-2(f), we consider the case as though it had originally been filed in this court. Maloy v. Stuttgart Memorial Hospital, 316 Ark. 447, 872 S.W.2d 401 (1994).\nThe facts presented to the trial court, with all presumptions favorable to the trial court\u2019s ruling, Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993), are these: Officer Terry Grizzle had twenty-one years service with the Fort Smith Police Department, fourteen years in narcotics. He testified the department received an anonymous call advising that Billy Ray Johnson and Angela Highsmith were in a particular unit of the Stonewall Jackson Inn in Fort Smith selling crank (amphetamine and methamphetamine), using a blue van to make deliveries. Officers Grizzle, Howard and Sullivan immediately set up surveillance and when Johnson and Highsmith came out of the motel and drove off in the van, the officers made an investigative stop. Johnson readily agreed to a search of the van and a quantity of hidden crank was discovered. Grizzle had known Johnson for a number of years and had a rapport with him. He knew Johnson to have previous drug arrests and convictions. Officer Howard\u2019s testimony was that both Johnson and Highsmith had been arrested before for drug violations and the officers had received information within the past ninety days \u201coff and on\u201d that Johnson was involved with other individuals in drug sales. In this review we engage in all reasonable presumptions consistent with the ruling of the trial court. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994).\nThe question before this court is: Was the trial court clearly wrong in deciding that the foregoing circumstances in their entirety were sufficient to arouse in trained police officers a reasonable suspicion of criminal activity? We believe that, given the totality of the circumstances, an investigative stop is precisely what should be expected of police officers. The search in this case was indisputably consented to by Billy Ray Johnson, hence, we are dealing with a mere stop, the least intrusive interference known to law enforcement. See 3 La Fave, Search and Seizure, \u00a7 9.3(e) at 486 (1987). Where the felonies or threats to the public safety are concerned, the government\u2019s interest in solving the crime and promptly detaining the suspect outweighs the individual\u2019s right to be free from a brief stop and detention. United States v. Hensley, 469 U.S. 221 (1985).\nThe landmark case dealing with investigative stops is Terry v. Ohio, 392 U.S. 1 (1968). Terry had appealed a conviction for carrying a concealed weapon. He was observed by a detective about 2:30 one afternoon. The officer\u2019s interest in Terry and two companions was aroused because they walked back and forth in a particular block peering in a store window and then conferring at the corner. The officer became suspicious and believed the men were \u201ccasing\u201d the store for a robbery. He approached the men, identified himself as a police officer, and asked for their names; he was not acquainted with any of the three by name or sight and had received no information concerning them from any source. When the men \u201cmumbled something\u201d in response to his question the officer grabbed Terry, \u201cspun him around\u201d to frisk him and found a pistol in his overcoat pocket. The Supreme Court of the United States affirmed a decision of the Supreme Court of Ohio that the revolver was properly admitted in evidence, holding that the- officer had reasonable grounds to believe that Terry was armed and dangerous and that his behavior justified an investigative stop. The court noted that the suspects had gone through a series of acts, while innocent in themselves, when taken together warranted further investigation. And while the officer could not rely entirely on his intuition, he could draw on his experience in observing people under a variety of circumstances.\nThe Arkansas Court of Appeals has recognized that judicial oversight in this area involves a balancing of the nature and extent of the intrusion against the attendant governmental interest. Miller v. State, 21 Ark. App. 10 (1987). Moreover, citing Terry, supra, and Sibron v. New York, 392 U.S. 40 (1968), the Court of Appeals has noted that a stop is \u201ca far lesser intrusion than a frisk,\u201d as occurred in Terry v. Ohio, supra. Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985). Building on that rationale, it seems that the stop in Terry v. Ohio, based solely on the act of gazing into store windows, arguably what they were designed for, with no prior criminal history known to the officer, more than validates an investigatory stop in this case based on direct information, albeit anonymous, of drug dealing by an individual known to the police to have a history of felony drug convictions and arrests. Unless the officers must entirely disregard the anonymous report of the alleged activity by Johnson and Highsmith, the totality of their information palpably arouses a reasonable suspicion. If an anonymous report can, with other circumstances, equate with probable cause, as in Illinois v. Gates, 462 U.S. 213 (1982), surely it can equate with reasonable suspicion, given the circumstances of this case. We conclude the police action in this case was based on a reasonable suspicion and was a permissible intrusion by means of an investigative stop. Alabama v. White, 496 U.S. 325 (1990); Lambert v. State, 34 Ark. App. 227, 808 S.W.2d 788 (1991).\nThe remarks of the Supreme Court in Adams v. Williams, 407 U.S. 143 (1972) are apropos to the case at hand:\nThe Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be more reasonable in light of the facts known to the officer at the time.\nFor the reasons stated, the findings of the trial court were not clearly erroneous and, accordingly, the judgment appealed from is affirmed.\nHolt, C.J., Dudley and Newbern, JJ., dissent.", "type": "majority", "author": "Steele Hays, Justice." }, { "text": "Jack Holt, Jr., Chief Justice,\ndissenting. I must respectfully dissent from the majority opinion. Because this case is so strongly fact-driven, it is necessary to set forth the circumstances leading to Billy Ray Johnson\u2019s arrest at some length.\nOn October 6, 1992, the Fort Smith Police Department received a telephone call from an unknown informant. The caller stated that Billy Ray Johnson and a companion, Angela High-smith, were selling crank (the street name for amphetamine and methamphetamine) in Room 56 at the Stonewall Jackson Inn. The anonymous tipster also described a blue van in the motel parking lot near the room. There was no indication of how the unidentified caller came into possession of the information.\nVirginia Ross, a police department secretary who took the call, verbally notified Sergeant Steven Howard, who then relayed the information to Sergeant Terry Grizzle. Sergeants Howard and Grizzle, along with Detective Patricia Sullivan, immediately drove in an unmarked car to the motel parking lot, where they found the blue van and observed Highsmith leave a motel room and enter the van on the driver\u2019s side. A few minutes later, the Narcotics Unit officers saw Johnson leave a motel room and get into the van on the passenger\u2019s side. (No evidence appeared of record concerning the motel room number.) The two suspects then left the parking lot, and the officers called for a marked police car to stop them, without, however, giving a particular reason.\nAt the hearing on Johnson\u2019s motion to suppress evidence, Sergeant Grizzle explained that the traffic stop was ordered because of the anonymous tip the police department had received. When the Narcotics Unit officers arrived, the patrol officer already had both Johnson and Highsmith out of the van. Johnson gave Sergeant Grizzle permission to search the van, and Detective Sullivan proceeded to examine the interior. In the meantime, the officers learned that Highsmith\u2019s driver\u2019s license had been suspended and that there were several warrants outstanding on her. At that point, Highsmith was placed under arrest.\nIn the course of her search of the vehicle, Detective Sullivan discovered a clear plastic bowl with a snap-on lid containing an off-white, chunky, powdery substance that Sergeant Grizzle recognized as methamphetamine \u2014 an identification subsequently confirmed by testing. Johnson and Highsmith were then arrested on drug charges.\nFollowing a hearing, conducted on November 4, 1992, on Johnson\u2019s motion to suppress the seized contraband, the circuit court ruled that the officers had a sufficient basis for the investigatory stop and therefore found the evidence admissible. On January 15, 1993, Johnson entered a conditional plea of guilty to the Class Y felony of possession of amphetamine with intent to deliver, reserving the right to appeal the outcome of the hearing on his motion to suppress the seized evidence. The circuit court entered judgment on January 21,1993, sentencing Johnson to twenty years imprisonment, with ten years suspended. The majority opinion describes the route by which the case reached this court.\nIn its brief, the State argues that the anonymous informant had provided the police with specific information about Johnson\u2019s activities and that the officers had past experience with him. The combination of past and present knowledge, the State contends, was sufficient to constitute reasonable suspicion warranting the investigatory stop of the van.\nUnder Ark. R. Crim. P. 3.1, a law enforcement officer may, in the lawful performance of his duties, \u201cstop and detain any person who he reasonably suspects is committing, has committed, or is about to commit... a felony.. . .\u201d (Emphasis added.) This rule incorporates the holding of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968).\n\u201cReasonable suspicion\u201d is defined in Ark. R. Crim. P. 2.1 as:\na 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.\nReasonable suspicion entails a consideration of the totality of the circumstances and the existence of particularized, specific reasons for a belief that a person may be engaged in criminal activity. Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991).\nIn a case dealing with an anonymous telephone tip, the United States Supreme Court, in Alabama v. White, 496 U.S. 325 (1990), placed special emphasis on independent corroboration by the police of information supplied by the unknown informant. The Court stressed, in particular, the value of predictions made by the informant regarding future actions of third parties because they \u201cdemonstrated inside information \u2014 a special familiarity with respondent\u2019s affair.\u201d 496 U.S. at 332.\nDuring direct examination at the hearing on the motion to suppress, Sergeant Grizzle noted that the police had previously \u201creceived information about Mr. Johnson that he was actually and actively dealing methamphetamine, and foreign amphetamine, crank, in Fort Smith and the surrounding area.\u201d He averred that he and Johnson \u201chave been involved with each other, so to speak, for the last four or five years\u201d and that he had \u201cbeen involved with arresting court procedures on Mr. Johnson on several different occasions.\u201d Without specifying a time frame, Sergeant Grizzle, on cross-examination, stated that \u201c[w]e had been getting information on Billy Ray for quite some time.\u201d\nOn direct examination, Sergeant Howard explained that part of the basis for police suspicion of Johnson was attributable to the fact that \u201c[bjoth Mr. Johnson and Ms. Highsmith had been arrested before for drug violations, and then we also had current intelligence that they were both involved once again in the dis: tribution of amphetamines.\u201d He commented that \u201c[apparently Sergeant Grizzle and Billy Ray Johnson have known each other off and on for a number of years, and they seemed to have the best rapport with each other. . . .\u201d\nDuring cross-examination at the hearing, Sergeant Howard conceded that the information which served as a justification for the investigatory stop was an anonymous tip and that the informant\u2019s reliability was problematic:\nQ: Was the reason for the stop because of the suspected, because of the information that you had received from your secretary?\nA: Yes, sir.\nQ: Now, normally, you classify individuals as reliable confidential informants or just, I guess, anonymous tips. This was an anonymous tip?\nA: Yes, sir.\nQ: So, you couldn\u2019t get a search warrant.\nA: I\u2019m sure we probably couldn\u2019t have. I\u2019m saying I\u2019m sure we couldn\u2019t have. It was not attempted, so I \u2014\nQ: This individual, you had no reason to believe they were reliable?\nA: I wouldn\u2019t have tried to get a search warrant. I\u2019ll put it that way.\nWhen asked to describe what he meant by his earlier statement that the police department had \u201ccurrent intelligence,\u201d Sergeant Howard responded that:\nI would say within the past ninety days we had been off and on receiving information that Mr. Johnson was involved with Benny Roam, with several individuals in that area, some Sharp boys, a gentleman named Smithson, another boy from down in \u2014 I mean, just off and on \u2014and some of this information was from what I would consider reliable informants.\nAt best, one can only assume that the police surmised that these \u201cindividuals\u201d were engaged \u201cjust off and on\u201d in some sort of unlawful activity. It is significant that Sergeant Howard conceded that the information did not specify whether Johnson and the others were \u201changing out together\u201d or whether drugs were involved or whether a confidential informant had made a drug purchase. Although invited to respond in a specific manner, the most he could say, somewhat vaguely, was that \u201cthe information was that they were involved.\u201d\nThus, what the police had available was an anonymous telephone tip of uncertain reliability and information that may have been as much as three months old. To focus, as the majority does, upon knowledge of past arrests extending back over a period of years or indefinite information provided \u201cwithin the past ninety days\u201d is to ignore the requirements relating to anonymous tips. Sergeant Howard admitted that the information was not sufficiently reliable to enable the police to obtain a search warrant. Further, no prediction was offered by the unknown tipster about Johnson\u2019s future behavior. Obviously missing, then, was any sort of special familiarity with Johnson\u2019s affairs. See Alabama v. White, supra.\nWhile reasonable suspicion is on a lower rung of certitude than probable cause, Tillman v. State, 275 Ark. 275, 630 S.W.2d 5 (1982), cert. denied, 459 U.S. 1201 (1983), a threshold still must be crossed to justify an investigatory stop and search. Simply put, the State, with its anonymous tip and imprecise, presumptively stale corroborative information, failed to cross the threshold of reasonable suspicion.\nI would, therefore, reverse the judgment of the circuit court.\nDudley and Newbern, JJ\u201e join in this dissent.", "type": "dissent", "author": "Jack Holt, Jr., Chief Justice," } ], "attorneys": [ "Appellant, pro se.", "Winston Bryant, Att\u2019y Gen., by: Clementine Infante, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Billy Ray JOHNSON v. STATE of Arkansas\nCR 94-615\n889 S.W.2d 764\nSupreme Court of Arkansas\nOpinion delivered December 19, 1994\nAppellant, pro se.\nWinston Bryant, Att\u2019y Gen., by: Clementine Infante, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0078-01", "first_page_order": 112, "last_page_order": 121 }