Danny Grupa v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

DANNY GRUPA

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-797

APRIL 6, 2005

APPEAL FROM THE SALINE

COUNTY CIRCUIT COURT,

[NO. CR01-652-2]

HONORABLE GARY M. ARNOLD,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Danny Grupa appeals two methamphetamine-related convictions, arguing that the Saline County Circuit Court erred in denying his motion to suppress. This appeal comes after he entered a conditional guilty plea pursuant to Ark. R. Crim. P. 24.3(b)(2004). His first appeal of the suppression issue was dismissed in Grupa v. State, 83 Ark. App. 389, 128 S.W.3d 470 (2003), for lack of a valid conditional plea, which deprived us of appellate jurisdiction. After dismissal, appellant was permitted by the trial court to re-enter a compliant conditional plea. The State concedes that this second attempt resulted in a valid conditional plea, but it asserts that the trial court's ruling on the motion to suppress was not clearly erroneous. After considering the arguments raised on appeal, we affirm.

Appellant's residence was searched pursuant to a warrant. His challenge on appeal is that the warrant was not supported by probable cause such that any and all evidence attained in the search should have been suppressed. Specifically, appellant argued at the suppression hearing that the officer's affidavit in support of the search warrant contained allegations of fact that should have been excluded as improper: (1) the facts gained from hearsay in a letter sent to the police from an unreliable anonymous informant; (2) the facts that were conclusively shown to be misleading or false; and (3) the facts gained through an unconstitutional search of a trash container outside the residence. Appellant asserts that these improper items should have been eliminated from the affidavit, and that viewing what is left, probable cause was lacking to support the magistrate's issuance of the search warrant.

Before reciting the contents of the affidavit, we are guided by the following legal principles. In reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001). The Fourth Amendment to the United States Constitution protects citizens against unreasonable search and seizure. It requires an issuing magistrate to simply make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that evidence of a crime will be found in a particular place. See Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001). The duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. See generally Wyatt v. State, 75 Ark. App. 1, 54 S.W.3d 549 (2001) (citing Illinois v. Gates, 462 U.S. 213 (1983)).

Pat Hawkins, a detective in the Bryant Police Department, sought the warrant for appellant's residence at 710 Southwest Third Street in Bryant for the purpose of searching for crystal methamphetamine and a laboratory. The affidavit was sworn on October 9, 2001, at 11:18 a.m., providing the following as facts constituting probable cause:

1. Affiant states that on 9/18/01, Chief Frank Gonzales of the Bryant Police Department received an anonymous letter stating that the residence located at 710Southwest 3rd Street was involved in narcotics trafficking. The letter identified the occupant of 710 Southwest 3rd Street as being Daniel Grupa. The letter also stated that around the end of July 2001, Daniel Grupa was evicted from his home located at 1002 Nash Lane Mablevale, Arkansas, as a result of his manufacturing methamphetamine.

2. Affiant states that this anonymous letter also stated that he/she has observed Mr. Daniel Grupa make at least two deliveries of methamphetamine to 202 Mills Park Road, which is the home of Lance Urrey. Lance Urrey is a known narcotics distributor in the Bryant area.

3. Affiant states that during a record check of the past Bryant Police Department incident reports, it was learned that Daniel Grupa is a known associate of Tyrone Honeysuckle. Tyrone Honeysuckle was arrested for manufacturing methamphetamine by the Bryant Police Department on August 27, 2001 after the execution of a search and seizure warrant.

4. Affiant states that on 10/9/01 officer of the Bryant Police Department picked up the trash container that was on the side of the road in front of the residence located at 710 South West 3rd Street. This container had been set out by the occupants of the residence of 710 South West 3rd Street sometime in the early morning hours of the same date. Inside the trash container officers found the following items: 2 boxes of empty Antihistamine packages, 16 empty blister packs of antihistamine tablets, 1 bottle of heet, numerous aluminum foil strips with burnt residue, 1 rag with the odor of acetone, 1 rag with red stains and odor of acetone, 1 Wal-Mart receipt dated 10/8/01 showing a purchase of Xylene and tubing, Numerous coffee filters with red stains some with odor of acetone, 1 empty can of Xylene, 1 rubber glove with red stains, one plastic bag with red powder residue, one zip-lock baggie with red stains and the odor and iodine crystals, one receipt dated 9/30/01 showing a purchase of heet. Due to my training and experience, I know all the above listed items are characteristic with the manufacture of methamphetamine.

The remaining two paragraphs listed Detective Hawkins's years of experience as a law enforcement officer, specified his training in the detection and dismantling of methamphetamine laboratories, and stated the danger and volatility of the manufacturing process. The magistrate issued the search warrant, and the trial court denied the motion to suppress the fruits of that search.

We first analyze the merits of the search of the trash container and hold that the search did not violate constitutional principles. Appellant alleges that the police unlawfully took his trash can and searched its contents. At the hearing on the motion to suppress, the officer explained that the trash can was two to three feet from the roadway in appellant's yard, the lid not all the way closed but resting on top of a bag of trash inside, set out early for trash pickup in the grass beside the end of the driveway. Appellant's argument asserts a violation of his Fourth Amendment right to be free from unreasonable searches and seizures under both the Arkansas and Federal Constitutions because this trash container remained within the property curtilage and subject to a reasonable expectation of privacy. We hold that no Fourth Amendment Right was violated and affirm on this point.

As an initial matter, the State points out that appellant did not argue at the trial level that the search of his trash container violated our state's constitution, but only implicated the United States Constitution. We agree that the issue is procedurally barred, but even had the issue been preserved, the analysis would be the same. In Rickard v. State, 354 Ark. 345, 123 S.W.3d 114 (2003), our supreme court held that it had not traditionally viewed a warrantless search of items such as one's trash or garbage differently from the federal courts. It therefore concluded that the Fourth Amendment analysis under California v. Greenwood, 486 U.S. 35 (1988), provided adequate protection against searches of a garbage container left at the curb of one's residence. Id.

Moving to the application of the relevant legal precedent, it is important to remember the touchstone of Fourth Amendment analysis, which is whether a person has a constitutionally protected, reasonable expectation of privacy. Freeman v. State, 37 Ark. App. 81, 824 S.W.2d 403 (1992) (citing Oliver v. United States, 466 U.S. 170 (1984)). The Fourth Amendment does not protect the merely subjective expectation of privacy, but only those expectations that society is prepared to recognize as reasonable. Id. If one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so. See Burdyshawv. State, 69 Ark. App. 243, 10 S.W.3d 918 (2000). Generally, one does not have a reasonable expectation of privacy in the yard, driveway, sidewalks, and other open areas of what we consider curtilage. See Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003).

The United States Supreme Court declared in California v. Greenwood, 486 U.S. 35 (1988), that under strikingly similar circumstances, the warrantless seizure and search of garbage bags left at the curb outside of Greenwood's house did not violate the Fourth Amendment. While Greenwood asserted that he manifested a subjective expectation of privacy in them that society was prepared to recognize, the Supreme Court disagreed that the expectation of privacy in the trash was reasonable. The Greenwood opinion reasoned that the trash was exposed to the public "on or at the side of a public street," where it was "readily accessible to animals, children, scavengers, snoops, and other members of the public" left there "for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondent's trash or permitted others, such as the police, to do so." Id. at 40. The trash bags were placed in "an area particularly suited for public inspection...for the express purpose of having strangers take it." Id. at 41. The Supreme Court noted that a majority of federal circuit courts and a majority of state courts that had considered the issue similarly rejected the notion of privacy rights in discarded trash, citing among them United States v. Michaels, 726 F.2d 1307, 1312-1313 (8th Cir. 1984). In addition, the relative strength or stability of the container holding trash is of no importance in the inquiry. See United States v. Ross, 456 U.S. 798 (1982). "[W]hat a person knowingly exposes to the public is not a subject of Fourth Amendment protection." McDonald v. State, 354 Ark. 216, 222, 119 S.W.3d 41, 45 (2003); see also Morris v. State, __ Ark. App. __, __ S.W.3d __ (April 28, 2004).

With the contents of the trash container listed in the affidavit properly before the magistrate, we hold that this alone supports the issuance of the warrant to search appellant's residence. In making the probable-cause determination, we are liberal rather than strict. Bennett v. State, 345 Ark. 48, 44 S.W.3d 310 (2001). Having so held, we need not address the remainder of appellant's arguments on appeal regarding the reliability of information gained in the anonymous letter or regarding whether the detective made other false or misleading allegations of fact. See Franks v. Delaware, 438 U.S. 154 (1978); Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002).

Affirmed.

Pittman, C.J., and Neal, J., agree.