# Jackson v. State/Concurrence Hannah

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* Concurring Opinions Hannah
* Jones
​ JIM HANNAH, Chief Justice, concurring. I concur that the circuit court's decision denying Jackson's motion to suppress should be affirmed. However, I write separately to state how I reached that conclusion.
As the majority states, Jackson presents three issues on appeal: (1) whether the evidence was seized in the course of an illegal detention, (2) whether the warrantless search of his vehicle was reasonable, and (3) whether the custodial statement violated his Miranda rights and the fruit-of-the-poisonous-tree doctrine.
As the majority notes, Jackson does not challenge the legality of the traffic stop that Corporal Behnke testified was for an "[i]mproper lane change, cutting in front of a tractor trailer, and following too close." The issue is whether Corporal Behnke unlawfully detained Jackson. Once the legitimate purpose of a valid traffic stop is over, to detain a person, a law-enforcement officer must have reasonable suspicion that the person stopped is about to ​commit a felony or a misdemeanor involving danger or forcible injury to persons or of appropriation or damage to property. See Sims v. State, 356 Ark. 507, 157 S.W. 3d 530 (2004); Ark. R. Crim P. 3.1 (2012). However, as part of the traffic stop, a law-enforcement officer may carry out certain routine tasks:
   This detention is, of course, unrelated to a Rule 3.1 detention. The Eighth Circuit Court of Appeals has discussed the detention associated with a valid traffic stop succinctly:
      [H]aving made a valid traffic stop, the police officer may detain the offending motorist while the officer completes a number of routine but somewhat time-consuming tasks related to the traffic violation, such as computerized checks of the vehicle's registration and the driver's license and criminal history, and the writing up of a citation or warning. See United States v. Carrazco, 91 F.3d 65, 66 (8th Cir. 1996). During this process, the officer may ask the motorist routine questions such as his destination, the purpose of the trip, or whether the officer may search the vehicle, and he may act on whatever information is volunteered.
Laime v. State, 347 Ark. 142, 157–58, 60 S.W.3d 464, 474–75 (2001) (quoting United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir. 1999)). According to the majority, Corporal Behnke "was still waiting for a return of criminal-history checks from ACIC for one of the men at the time he deployed K-9 Major." While Corporal Behnke's testimony was mixed on when, or if, he ever received a report on the ACIC/NCIC check, there was evidence from which the circuit court could have concluded that Corporal Behnke had not received the report at the time Major was deployed to run around the vehicle to check for contraband. Therefore, at that time, the traffic stop was still ongoing, and this court need look no further. Rule 3.1 had not come into play, and there is no merit to Jackson's argument that he was unlawfully detained at the time Major was utilized.
​Nonetheless, the majority goes on to state, "Jackson acknowledges that there is case law suggesting that a stop is not completed until the driver's license and any accompanying paperwork is returned, which is precisely what we recently stated in Menne [v. State], 2012 Ark. 37, 386 S.W.3d 451." In Menne, this court stated,
   Two issues confront this court in the instant case. The first is whether the purpose of the traffic stop was over at the time Trooper Roark requested Menne's consent to search the vehicle. The second issue is whether Roark developed a reasonable suspicion during the course of the traffic stop that was a sufficient basis to detain Menne further. . . . Countering that, however, is Menne's assertion that the warning citation was not provided to her by Roark because he was waiting for the K–9 unit to begin the dog sniff. Because we conclude that Roark had reasonable suspicion to detain Menne, we need not resolve the first issue.
Id. at 5–6, 386 S.W.3d 451, 454–55 (citations omitted). Menne does not stand for the proposition that a traffic stop is not completed until paperwork is returned. For this same proposition, the majority also relies on Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007); but, in that case, the evidence accepted by the circuit court was that the officer "was in the process of writing the warning before consent was requested and obtained." Yarbrough, 370 Ark. at 39–40, 257 S.W.3d at 57. This court in Yarbrough stated further as follows:
   In Lilley v. State, [362 Ark. 436, 208 S.W.3d 785 (2005)], we viewed the traffic stop as completed after the warning and vehicle documentation were handed to the driver. Likewise, we said in the Sims case that the legitimate purpose of the stop had terminated "after [the officer] handed Sims back his driver's license and registration, along with a warning for [the traffic offense]. . . ." Sims v. State, 356 Ark. [507] 513, 157 S.W.3d [530], 534. Based on this case law, we cannot say that the circuit court's ruling is clearly against the preponderance of the evidence.
Id. at 39, 257 S.W.3d at 57.
There is no question that this court has concluded that handing back the paperwork and giving the person a warning or ticket constitutes a legally recognized indicia that the ​law-enforcement officer has completed the traffic stop. However, the majority errs in concluding that the legal length of the traffic stop is controlled by when paperwork is returned. A law-enforcement officer does not control the length of the stop by when he or she returns paperwork. In other words, a law-enforcement officer may not withhold paperwork in order to extend the traffic stop beyond the time permitted by law. The majority errs in stating, "While we may not have a bright-line rule for when a stop is legitimately completed, our case law has consistently held that a stop is not concluded when the officer has not returned the license, paperwork, or ticket." The law is, that, "[o]nce the purpose of the traffic stop is completed, the officer may not further detain the vehicle or its occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention." Yarbrough, 370 Ark. at 38–39, 250 S.W.3d at 56–57; Sims, 356 Ark. at 514, 157 S.W.3d at 535 (citing United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997)). Corporal Behnke indicated his understanding of this law in his testimony. He stated that he was still waiting for the ACIC/NCIC returns. He asked for consent to search the vehicle and testified "I didn't hold onto the ticket. I had written it out before I ran the dog around the car. I didn't give it to Mr. Maysonet 'cause the traffic stop was not complete yet." As already noted, the circuit court accepted Corporal Behnke's testimony that he was still waiting for return on the ACIC/NCIC report when the dog was instructed to run around the car. A law-enforcement officer may not extend the time for completion of the purpose of the traffic stop by retaining paperwork. Such a holding grants unfettered discretion and is impermissible.
With respect to Major's alert in this case, I agree with the majority that the circuit ​court should be affirmed in its finding that the alert provided probable cause for the search. As the majority notes, Corporal Behnke testified that Major made a profound alert to the point that he was choking himself on his collar. I agree that Major's certification, combined with Corporal Behnke's testimony about the alerts made by Major, satisfy the requirements under the Fourth Amendment. With respect to the use of dogs for various purposes, the United States Supreme Court has stated as follows:
   Official conduct that does not "compromise any legitimate interest in privacy" is not a search subject to the Fourth Amendment. [United States v.] Jacobsen, 466 U.S. [109] [, 123] [(1984)]. We have held that any interest in possessing contraband cannot be deemed "legitimate," and thus, governmental conduct that only reveals the possession of contraband "compromises no legitimate privacy interest." Ibid. This is because the expectation "that certain facts will not come to the attention of the authorities" is not the same as an interest in "privacy that society is prepared to consider reasonable." Id., at 122, 104 S.Ct. 1652 (punctuation omitted). In United States v. Place, 462 U.S. 696, (1983), we treated a canine sniff by a well-trained narcotics-detection dog as "sui generis" because it "discloses only the presence or absence of narcotics, a contraband item."
Illinois v. Caballes, 543 U.S. 405, 408–09, (2005). Distilled to its essence, the idea set forth by the United States Supreme Court is that no one is harmed by the use of a canine except those who have contraband, so there is no just cause to object to the use of the canine. I am not convinced that this approach comports with the average person's understanding of liberty. The ability to go about one's business without official interference is a core element of liberty. The rule at present with respect to traffic stops is, that if a canine can be obtained prior to completion of the traffic stop, the dog can carry out a sniff with or without the vehicle driver's and passengers' consent. How these issues might be resolved if they were properly raised below in the circuit court, ruled on, and developed before this court under the Arkansas Constitution remains to be seen.
​I agree with the majority's conclusions and analysis regarding Jackson's custodial statement. However, for the reasons set forth above, I write separately on the other two issues.
BAKER and HART, JJ., join.