Jeremy Maddox v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR05-572

February 8, 2006

JEREMY MADDOX AN APPEAL FROM DESHA

APPELLANT COUNTY CIRCUIT COURT

[CR04-27-1B]

V. HON. SAM POPE, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Appellant Jeremy Maddox appeals from his conviction for manufacturing methamphetamine.1 He argues that the trial court erred in denying his motion to suppress. We affirm.

Appellant was charged with manufacturing methamphetamine and possession of drug paraphernalia after a search of his vehicle and a subsequent investigation yielded evidence showing that appellant and another person, Mark Hatcher, were engaged in manufacturing methamphetamine. Appellant moved to suppress evidence found in the search and subsequent investigation.

Carroll Sirmon of the McGehee Police Department was finishing his shift in the early morning hours of January 26, 2004, when he saw a black Toyota Four-Runner cross the yellow line and fog line several times. He pulled the vehicle over for suspicion of drunk driving. When he approached the vehicle, appellant was sitting in the driver's seat and Hatcher was in the passenger's seat. Officer Sirmon asked appellant for his driver's license and informed appellant that he was stopped for suspicion of drunk driving. Appellant told Officer Sirmon that he was "all over the road" because a battery had blown up in his face and that he could not see well. Officer Sirmon asked if appellant minded if he looked in the vehicle to make sure there were not any open containers or alcohol. Appellant responded by stepping out of the vehicle and saying, "Sure, go ahead." Officer Sirmon shined his flashlight and checked the floorboard for open containers. He then went to the passenger side of the vehicle. While walking to the passenger side, he saw a propane tank in the back seat; however, Officer Sirmon testified that it would not be out of the ordinary to see a propane tank. He then spoke to Hatcher and asked him if he minded stepping out of the vehicle so that he could look inside, to which Hatcher responded, "Sure, go ahead." Officer Sirmon shined his flashlight in the floorboard and saw a blue Wal-Mart sack. Inside the sack, he saw lithium batteries, some new and some peeled. Based on his training and experience, Officer Sirmon concluded that the batteries and propane tank were possible drug paraphernalia for methamphetamine. He then went to the back of the vehicle, read appellant and Hatcher their Miranda rights, and informed them that he was arresting them for possession of drug paraphernalia with intent to manufacture. Later that evening, Hatcher took Officer Sirmon to a methamphetamine lab.2 On cross-examination, Officer Sirmon testified that he stopped appellant on suspicion of DWI but that he did not smell any intoxicants. He also stated that he did not order appellant out of the vehicle and that appellant was sitting in the vehicle when he asked for consent to search the vehicle.

Appellant testified that Officer Sirmon walked up to his vehicle, asked him to step out and, proceeded to search his vehicle. He stated that he did not have a chance to ask Officer Sirmon why he pulled him over and denied saying anything about a battery blowing up in his face.

Hatcher testified that he remembered Officer Sirmon approaching the vehicle. He stated that Officer Sirmon asked appellant to step out of the vehicle, then came to his side of the vehicle, asked him to step out, and searched the vehicle.

The trial court denied appellant's motion to suppress. Appellant was later found guilty of manufacturing methamphetamine and possession of drug paraphernalia. He was sentenced to ten years in the Arkansas Department of Correction on the manufacturing charge and five years suspended sentence on the possession charge.

For his sole point on appeal, appellant argues that the trial court erred in denying his motion to suppress. He contends that Officer Sirmon did not properly obtain consent to search his vehicle and that the evidence seized in his vehicle, as well as the evidence obtained after the search, should have been excluded.3

We conduct a de novo review of a motion to suppress 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. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003) (citing Ornelas v. United States, 517 U.S. 690 (1996)). We reverse only if the trial court's decision is clearly against the preponderance of the evidence. Miller v. State, 81 Ark. App. 401, 102 S.W.3d 896 (2003).

Any search without a valid warrant is unreasonable unless the search is within one ofthe exceptions to the warrant requirement. Lobania v. State, 60 Ark. App. 135, 959 S.W.2d 72 (1998). An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search. Ark. R. Crim. P. 11.1(a); Welch v. State, ___ Ark. ___, ___ S.W.3d ___ (Dec. 8, 2005). A person may consent to a warrantless search; however, the State has the burden of proving that the consent was freely and voluntarily given and that there was no actual or implied duress or coercion. Ark. R. Crim. P. 11.1(b); Welch v. State, supra. The United States Supreme Court has held that a valid consent to search must be voluntary, and that "[v]oluntariness is a question of fact to be determined from all the circumstances." Welch, ___ Ark. at ___, ___ S.W.3d at ___ (quoting Ohio v. Robinette, 519 U.S. 33, 40 (1996)).

Appellant argues that Officer Sirmon never specifically asked for consent because Officer Sirmon never used the word "consent." A similar argument was rejected in Welch v. State, supra. There, the appellant contended that a consent to search was invalid because the officer did not use the words "search" or "consent to search" when requesting permission to search his vehicle. The police officer, after asking the appellant if there were any alcohol, drugs, or firearms in his vehicle, asked the appellant, "Do you mind if I look?" The supreme court stated that the search was valid because the appellant agreed to allow the police officer to search his vehicle. The present case is indistinguishable. Officer Sirmon asked if appellant minded if he looked for any open containers, and appellant said, "Sure, go ahead." This constitutes valid consent, and the fact that appellant was very informal in granting consent does not make the search any less valid.

Appellant attempts to analogize the consent in this case with the invalid consent in Bumper v. North Carolina, 391 U.S. 543 (1968), where police obtained "consent" by first telling the defendant's grandmother that they had a search warrant. Appellant notes that Bumper is distinguishable from the instant case; however, he contends that both share the same principle-"the demonstration of apparent authority." He contends that Officer Sirmon asked appellant if he could look in the vehicle for open containers or alcohol as a pretext to search his vehicle for illegal drugs without reasonable cause to do so and that Officer Sirmon did so, implying that appellant had no right to resist the search. This argument fails on two grounds. First, appellant presented no evidence that the search was pretextual. The record shows that Officer Sirmon suspected appellant of drunk driving, searched appellant's car believing that he was investigating a DWI, and happened to find drug paraphernalia. Cf. Welch v. State, supra (rejecting the argument that a person may limit the type of contraband seized in a consensual search). Second, even if the search were pretextual, appellant's consent validated the search.

We hold that appellant gave informed, unequivocal, and voluntary consent to search his vehicle. Because Officer Sirmon's search of appellant's vehicle was valid, any other evidence found during the subsequent investigation was also valid and not "fruit of the poisonous tree." See Baird v. State, ___ Ark. ___, ___ S.W.3d ___ (May 27, 2004). The trial court properly denied appellant's motion to suppress.

Affirmed.

Vaught and Baker, JJ., agree.

1 While appellant was convicted of both manufacturing methamphetamine and possession of drug paraphernalia, the record at trial and the notice of appeal indicate appellant's intent to appeal only the manufacturing charge.

2 Hatcher later pleaded guilty and received ten years' probation.

3 Appellant argues that Officer Sirmon did not have reasonable cause to search his vehicle. At no point has the State contended that Officer Sirmon had reasonable cause.