Ricky Hites v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

MARGARET MEADS, JUDGE

DIVISION II

RICKY HITES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-186

November 1, 2000

APPEAL FROM THE BOONE COUNTY CIRCUIT COURT

[NO. CR-98-309]

HON. ROBERT McCORKINDALE II,

CIRCUIT JUDGE

AFFIRMED

Ricky Hites was convicted by a Boone County jury of possession of drug paraphernalia and possession of a controlled substance, methamphetamine. He was sentenced to three years' imprisonment on each conviction, with the sentences to be served concurrently. His sole point on appeal is that the trial court erred in denying his motion to suppress. We affirm.

On September 9, 1998, the Boone County Sheriff's Department received a telephone call from a Fayetteville, Arkansas, law firm informing them that appellant had threatened suicide. When officers arrived at the residence to investigate, there was no answer at the door, so they gained entry through a window. A sweep of the house revealed several firearms in the house, but no one was present.

Detective Paul Woodruff then obtained a warrant authorizing a search of appellant's house. The list of property for which the house was to be searched included illegal drugs, any substances or apparatus used in the manufacture of illegal drugs, drug paraphernalia, firearms, and weapons. The basis for issuing the search warrant was an affidavit sworn by Detective Woodruff, in which he recited instances of several anonymous tips that methamphetamine was being manufactured and sold at appellant's house; that he had observed suspicious vehicle traffic at appellant's house; and that appellant was a convicted felon. The affidavit also stated:

On 9-09-98 Rick Hites threaten [sic] to kill himself. Boone County Sheriff's Department responded to the Hites' residence to check on the safety of Hites and his family. Officers checked the residence and found numerous firearms throughout the residence in plain view. Hites was not at the residence at the time, but later was located going back to the residence. The residence is being secured at this time by officers.

Upon execution of the search warrant, officers found numerous firearms, as well as the drug paraphernalia and methamphetamine which led to appellant's conviction. On appeal, appellant argues that the evidence found as a result of the search warrant should be suppressed. Specifically, he contends that the informants were not reliable because they were anonymous; that some of the information in the affidavit was stale; that the search for firearms was not valid because the firearms were found in a jointly-occupied residence; and that the warrant was overly broad.

When reviewing the trial court's denial of a motion to suppress, the appellate courts make an independent determination based on the totality of the circumstances and reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Embry v. State, 70 Ark. App. 122, 15 S.W.3d 367 (2000).

Appellant concedes that exigent circumstances justified the initial warrantless search, based upon his suicide threat. We agree that the initial search was authorized by Rule 14.3(a) of the Arkansas Rules of Criminal Procedure, which provides, "An officer who has reasonable cause to believe that premises . . . contain individuals in imminent danger of death or serious bodily harm . . . may, without a search warrant, enter and search such premises . . . and the persons therein, to the extent reasonably necessary for the prevention of such death, bodily harm, or destruction."

Following the initial search, and with the knowledge that appellant was a convicted felon and that numerous firearms were in plain view in his residence, officers sought and obtained the search warrant in question. During the search of the residence, officers found drug paraphernalia in two plastic boxes in the master bedroom, in the entertainment center, and in appellant's black leather jacket; they also found methamphetamine in a dresser located in the master bedroom. All of these were places where a firearm could have been located; thus, a search of these places was reasonably necessary to discover firearms. Moreover, illegal drugs and drug paraphernalia were specified in the warrant as objects of the search. Because the search warrant was properly based upon what the officers saw inplain view while properly performing a warrantless search pursuant to Rule 14.3(a), we need not address appellant's other objections to the warrant.

In his argument, appellant contends that "the validity of the search depends entirely upon the validity of the search for weapons." Citing Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982), he argues that the search for weapons was not valid because the residence was jointly occupied by himself, his wife, and their two sons, and nothing indicated that the firearms were his.

Appellant's reliance on Osborne is misplaced. In that case, our supreme court discussed what must be proven by the State to convict a person of possession when there is joint occupancy of a premises; it does not hold that a search warrant is invalid if there is joint occupancy of the premises sought to be searched and the officers do not prove that a defendant had control of the items seized.

The trial judge's denial of appellant's motion to suppress was not clearly against the preponderance of the evidence. Therefore, we affirm.

Affirmed.

Robbins, C.J., and Crabtree, J., agree.