Wesley Wilson v. State of Arkansas

ar05-398

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

WESLEY WILSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-398

JANUARY 25, 2006

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT

[NO. CR02-721-3]

HON. GRISHAM A. PHILLIPS JR.,

JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Wesley Wilson entered a conditional plea of guilty to various drug-related charges after the Saline County Circuit Court denied his motion to suppress certain evidence. He was sentenced to a total of twelve years' imprisonment. On appeal, he contends that the trial court erred in denying his motion to suppress. We affirm.

The facts of this case are as follows. On October 24, 2002, Saline County Sheriff's Detective Richard Friend received information that a white male in a blue pickup truck had gone to a Benton bank and had exchanged approximately $3500 in twenty-dollar bills for one-hundred-dollar bills. The money reportedly had a "strong chemical odor." Detective Friend traced the license plate of the truck to Wilson, who had a prior criminal history. Friend then contacted Detectives Michael Hardester and Kevin Cooper to assist in a follow-up investigation of the bank's report. The officers drove to Wilson's residence in Saline County and knocked on the door. A woman named Diane Jones opened the door, and, as she did, Friend noticed a "strong odor of marijuana." Friend spoke with Jones and informed her of the situation, and also told her that he smelled marijuana. Jones admitted that she had

been smoking marijuana. When officers requested consent from Jones to search the residence, she refused, stating that Wilson had told her not to allow narcotics agents to search the residence and that she feared for her safety. Jones then left with three small children, and Officers Cooper and Hardester remained at the scene while Friend went to prepare an affidavit for a search warrant.

Friend returned approximately one to two hours later with a search warrant. The warrant directed officers to search the "residence, curtilage, outbuildings, vehicles, and persons" at Wilson's residence and specifically authorized officers to seize evidence and records of the following:

(1) Marijuana and/or paraphernalia for packaging, weighing, manufacturing, and distributing marijuana, items used for surveillance and the detection of Law Enforcement officers.

(2) Books, records, receipts, notes, ledgers, and other papers related to transportation, manufacturing, purchase and distribution of controlled substances, in particular Marijuana.

(3) Photographs, in particular photographs of co-conspirators, assets, and/or controlled substances[.]

(4) Indicia of occupancy, and/or ownership of the premises described above.

(5) Any and all other instrumentality's [sic] and money of criminal activity[.]

Prior to returning, Friend telephoned Detectives Hardester and Cooper to inform them that he had obtained the warrant. As Friend was making this call, Wilson and another man, Michael Holdman, returned to the residence on four-wheelers. They came within approximately twenty-five feet of the residence, and Detectives Hardester and Cooper approached the men and searched them. The officers also searched a fanny pack that was hanging on Wilson's four-wheeler. During the search, officers found methamphetamine, guns, and approximately $3094 in cash. Wilson was arrested and officers proceeded to conduct a search of the premises.

A search of the buildings on the property (including a shop building, the residence, and vehicles in the yard) resulted in the recovery of several items related to the manufacture of methamphetamine, including the following: blue plastic box with approximately thirty pounds of red phosphorus, a one-gallon jar with clear liquid and white sediment at the bottom that tested positive for ephedrine, coffee filters with brown sediment that tested positive for amphetamine, three boxes of latex gloves, two sets of digital scales, acetone, two police scanners, rubber tubing, several plastic gallon sprayers, several coffee filters that tested positive for methamphetamine, two boxes of pseudoephedrine, $3500 in currency, approximately two grams of white powder that tested positive for methamphetamine, hypodermic needles, numerous smoking devices, and other drug paraphernalia. Officers also found a bag of green vegetable matter, which was believed to be marijuana; a Bible with $200 inside; a brown notebook with "hidden areas" listed; a skillet with white powder baked on it; and several listening and surveillance devices.

Wilson was subsequently charged with seven drug-related offenses, including possession of drug paraphernalia with the intent to manufacture methamphetamine; possession of a controlled substance (methamphetamine) with the intent to deliver; possession of drug paraphernalia; possession of ephedrine/pseudoephedrine with the intent to manufacture methamphetamine; possession of more than nine grams of pseudoephedrine; manufacturing methamphetamine; and simultaneous possession of drugs and firearms. He filed a motion to suppress, claiming that the facts in Detective Friend's affidavit were insufficient to establish probable cause authorizing the search of the residence and that the search of Wilson's person was also without probable cause. Following a hearing, the trial court denied Wilson's motion to suppress, stating as follows:

I'm going to deny [Wilson's] motion to suppress for a couple of reasons. First off, and perhaps prior to today's hearing, of course, I certainly would not have known that your client was arrested because of the substance that was found in the fanny pack, but not only might it be an area which is within the areas described within the search warrant that are permissible to search for marijuana, but also I think that the officers have the right to, when there are persons at the premises the officers have the right to, for their own safety, to check the person, the clothing, that sort of thing and anything within the immediate reach of that person to make sure that there are no weapons that the person could use on the officers and that's the reason I inquired about the size of the fanny pack. The officers rightfully seized the weapons for their own safety and then continued to hold those after Holdman and Wilson were arrested. I've looked at this list pretty closely and the officers did find marijuana in the master bedroom. ... I've looked at the remainder of the items that are listed or associated with the sale of marijuana. Others aren't quite so clear, but nearly everything on the list would be considered to be contraband even if it was not associated with the sale or possession of marijuana. The officers are certainly not required to overlook something that is listed in the search warrant as an item that can be seized.

On appeal, Wilson argues that the evidence seized should have been suppressed because there was no specificity in the search warrant describing the articles that were seized (i.e., the warrant only authorized the seizure of marijuana-related items, not methamphetamine-related items). He also claims that the search warrant affidavit "did not contain reasonable cause that the items seized would be located in [Wilson's] residence, any vehicle or outbuilding or on the person of [Wilson], apart from the marijuana found in the master bedroom."

When reviewing the circuit court's ruling on a motion to suppress evidence from a search, 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 trial court. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003).

We hold that the trial court did not err in denying Wilson's motion to suppress. First, the search warrant authorized officers to seize items not specifically mentioned therein, including "any and all other [instrumentalities] and money of criminal activity." Moreover, as the State points out in its brief, items other than those specified in the warrant may be seized under Ark. R. Crim P. 13.3(d), which states as follows:

The scope of search shall be only such as is authorized by the warrant and is reasonably necessary to discover the persons or things specified therein. Upon discovery of the persons or things so specified, the officer shall take possession or custody of them and search no further under authority of the warrant. If in the course of such search, the officer discovers things not specified in the warrant which he reasonably believes to be subject to seizure, he may also take possession of the things so discovered.

(Emphasis added.) In George v. State, ___ Ark. ___, ___ S.W.3d ___ (June 24, 2004), our supreme court held that a trial court properly denied a motion to suppress evidence where, although items other than those specified in the search warrant were seized, officers properly seized the additional items under Ark. R. Crim. P. 13.3(d). Similarly, in this case, officers could seize items not specified in the warrant under the authority of Ark. R. Crim. P. 13.3(d).

Wilson also claims that the search warrant was not supported by reasonable cause that the items discovered-with the exception of the marijuana found in the master bedroom-would be found in his residence, in any vehicle or outbuilding at his residence, or on his person. However, the trial court never specifically addressed the issue of reasonable cause to support the warrant in denying Wilson's motion to suppress. Because Wilson failed to obtain a ruling on this matter, he is precluded from making this argument on appeal. See Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999) (recognizing that an appellate court will not review a matter on which the trial court has not ruled; and a ruling should not be presumed). For these reasons, we affirm.

Affirmed.

Gladwin and Vaught, JJ., agree.