Page:Jackson v. State, 2013 Ark. 201, 427 S.W.3d 607.pdf/22

 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.

B and H, JJ., join. 

 Special Justice G T. J, concurring. I agree that the circuit court did not err in denying the motion to suppress after finding that the purpose of the stop had not been completed at the time K-9 Major was deployed. Yet, I write separately to address two aspects of the majority's opinion that give me pause.

I. Standard of Review
The first pertains to our Court's standard of review. In outlining the applicable standard of review, the majority states:

"In reviewing a circuit court's denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court's findings. E.g., Menne v. State, 2012 Ark. 37, 386 S.W.3d 451."

"A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. E.g., Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. We defer to the superiority of the circuit court to evaluate the credibility of witnesses who testify at a suppression hearing. E.g., Cockrell v. State, 2010 Ark. 258, 370 S.W.3d 197. We reverse only if the circuit court's ruling is clearly against the preponderance of the evidence. Ritter v. State, 2011 Ark 427, 385 S.W.3d 740."

While that formulation is virtually identical to what appears in scores of search and seizure opinions that this Court has issued over the past two decades, it amounts to a conflation of multiple tests that is, at best, ambiguous and, at worst, self-contradictory. It needs to be re-tooled.

The lineage of this standard of review can be traced to at least two separate lines of