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McConnell v. State2/11/2004
came back, and I had already made my way up to that road where he was at, and he saw me and he tried turning right, but there was a bulldozer--or I think it was a bulldozer sitting there, and he almost slammed into the bucket part of it, and he reversed all the way down the hill past me, I turned around, and he speeded out of here. I chased him all the way to the entrance of the Cliffs, and I didn't follow him any further.
In turn, Central Command relayed the following information to the officer who stopped Mr. McConnell:
Central Command: 10-4. Check the area northbound from the Cliffs Apartments. About five to ten minutes ago. You're going to be looking for a black BMW, Arkansas VL 149 Edward Mary Sam. 149 Edward Mary Sam, that does come back to a black BMW to a Mr. McDonald (sic). I guess security was following him around the apartment complex and he kept avoiding him, then he went up a hill where they were building five new buildings, got by a bulldozer, and then he reversed all the way out of the apartment complex while security was following him. If you would, just check the area.
This case is not analogous to Frazer v. State, 80 Ark.App. 231, 94 S.W.3d 357 (2002), in which the informant reported a face-to-face encounter with an intoxicated driver through a drive-through window, nor does it comport with Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998), in which the informant reported seeing a man drinking beer while sitting in the cab of his parked tractor-trailer. Moreover, here, the security guard was in fact the instigator of appellant's evasive behavior by attempting to confront him and in chasing him. It is surely not an offense to attempt to avoid contact with a person who approaches you in such a manner on an off-street parking lot. An examination of the informant's call to the police reflects, not someone driving erratically or recklessly on the public streets, but rather a driver seeking to avoid an off-street encounter.
Indeed, the arresting officer testified only that he "thought that there might have been a possible burglary or breaking and entering," and made no mention of reckless or erratic driving. The informant in this case reported no driving offense, and no suspicion of intoxication; the majority does not even suggest that there was reasonable suspicion to stop based on the reason given by the officer, that a breaking and entering might have occurred. There was thus no reasonable suspicion to stop McConnell on either of the two bases advanced by the State, and I would reverse.
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