1 search upheld, another rejected; Arkansas man's drug conviction overturned

The Arkansas Court of Appeals on Wednesday overturned one man's drug conviction on the grounds that it was the result of an illegal search, while ruling in another case that the search and seizure of drugs there was legal.

In the first case, judges on the appellate court overturned the conviction of Mo Shay, 24, of Clarksville, who was convicted last year of possession of methamphetamine.

In Shay's case, police say they found him in a parked car in a park early in the morning. The Clarksville police officer at the scene was familiar with Shay and able to identify him even though Shay claimed he did not have identification, according to court records.

The officer, Kenneth Kennedy, also said in the lower court that the city park was known for having "medium-high" crime.

Kennedy said he watched Shay fidget with his pockets, prompting the officer to pat Shay down. The officer found Shay's wallet. After opening the wallet and taking out Shay's ID, the officer said he found a small brown bag of methamphetamine tucked behind Shay's ID card.

A four-judge panel on the appeals court ruled that while Kennedy's pat-down search was justified to search for weapons and protect his own safety, the officer was not justified in searching through Shay's wallet. They noted in their opinion that the officer had already been able to identify Shay.

The court reversed and remanded the case to the lower court, saying the circuit judge erred in denying Shay's motion to suppress the evidence. Appeals court Judge David Glover dissented.

The second case, that of 36-year-old Jake Earl Small of Fort Smith, was affirmed in part and reversed and remanded in part by a split panel of appeals judges.

The majority opinion, written by Chief Judge Rita Gruber, reversed and remanded Small's conviction for which he was given an additional 10 years for possessing a controlled substance within 1,000 feet of a church. The majority found that the lower court judge erred in concluding that the law did not require Small to have a "culpable mental state" in violating the statute.

The majority, however, found no legal issue with the traffic stop that led police to discover seven hydrocodone pills in a plastic bag in Small's car.

According to records in that case, Fort Smith police officer Eric Hoegh said he pulled Small over for lack of insurance -- though it was later discovered that the police database was out of date and Small was insured -- and continued his search after finding out that Small had an active warrant.

A lengthy dissent penned by appeals court Judge Brandon Harrison said the decision to stop Small in the first place ran afoul of the U.S. Constitution's Fourth Amendment protections against "unreasonable searches and seizures" because it was based solely on a "shaky database." Harrison noted there was no evidence that Small was violating traffic laws before he was pulled over.

Both men were listed in the Arkansas Department of Correction's online roster of incarcerated people Wednesday.

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Metro on 02/08/2018

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