Michelle Langley v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

MICHELLE LANGLEY,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-868

SEPTEMBER 26, 2001

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT,

NO. CR00-88,

HON. ROBERT EDWARDS, JUDGE

AFFIRMED

Michelle Langley entered a conditional plea in White County Circuit Court to the charges of possession of methamphetamine, possession of drug paraphernalia, and possession of marijuana. The charges resulted from contraband that was discovered in her car by Deputy Mike Rogers of the White County Sheriff's Department. She contends on appeal that the trial court erred in upholding "the validity of the searches and seizures." We affirm. Deputy Rogers testified at a suppression hearing regarding events that began about 6:00 a.m. on January 21, 2000, when he was at the sheriff's department with other officers. He testified that Langley knocked on an upstairs door at the department, she appeared to be very intoxicated and agitated, and officers brought her inside. Rogers stated that Langley was very upset about a domestic disturbance that she reported, that she wanted "something to happen" to the person involved, that she told officers that the person had a large amount of drugs, but that she was unable to tell them a specific name or locationbecause of her level

of intoxication.

Rogers testified that officers advised Langley that she could not drive her car due to her intoxication, and that she was being detained until someone could come to get her. He further testified that Langley asked him to go outside and turn her car off, and that he went to the alley where she had left the unlocked car. He stated that he opened the driver's door, noticed a marijuana roach lying on the carpet between the door and the seat, confiscated the roach, turned the vehicle off, took the keys, and went back inside to advise Langley of her Miranda rights and to tell her that she was under arrest. He testified that he charged her with public intoxication and possession of marijuana. He further testified that a wrecker service was called to tow the car because of Langley's arrest and because her car was parked on private property, between buildings where the prosecutor and juvenile-intake officers park. He said that the vehicle had to be removed because it was blocking an alleyway, and that cars would not have been able to travel through had the car been left there.

Rogers testified that, as required by department policy, he inventoried the contents of the car before it was towed; he said that he began the inventory about fifteen minutes after Langley had arrived. During the inventory he found drug paraphernalia, methamphetamine, and more marijuana, leading to the charges against Langley for possession of methamphetamine and possession of drug paraphernalia.

Rogers testified that in making his inventory, he kept two lists. He said, "When I inventory a vehicle, I take the contraband I listed separately on a White County Sheriff'sDepartment Evidence Report." A document of that title, introduced through his testimony, shows an "Evidence Inventory" that lists the items of contraband found in Langley's car. Rogers testified that on another sheet he listed those items that were going to be left in the vehicle.

At the end of the suppression hearing, the trial court announced its findings of fact and conclusions of law. The court ruled that Langley gave a valid consent to enter the vehicle to turn it off; that upon entering the vehicle to turn off the car, Deputy Rogers discovered what appeared to be a marijuana roach lying on the carpet in plain view; that Rogers then placed Langley under arrest for public intoxication and possession of marijuana; that there was a valid search incident to arrest under Rule 12.4; and that if the search was not incident to arrest, that the search was a valid inventory search.

When reviewing a trial court's denial of a motion to suppress, the appellate court makes an independent determination based on the totality of the circumstances and will reverse only if the court's ruling is clearly against the preponderance of the evidence. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998).

Langley contends on appeal, as she did below, that although Rogers claimed to have relied on the sheriff department's inventory policy, he actually conducted an evidentiary search. She asserts that the discovery of the marijuana roach was the fruit of an illegal search because she did not give consent for the initial entry into her vehicle. She further asserts that, even if initial consent for entry was given, the officer's reentry of the vehicle violated the Fourth Amendment and Ark. R. Crim. P. Rules 12.4 and 12.6.

Another exception to the requirement of a warrant, a search made incident to arrest, is set forth at Ark. Rule 12.4:

(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.

(b)The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.

The inventory search is an exception to the requirement of a warrant. Arkansas Rule of Criminal Procedure 12.6 provides that "[a] vehicle impounded in consequence of an arrest, or retained in official custody for other good cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents."

We first address Langley's assertion that she did not give consent for the initial entry of her vehicle. Deputy Rogers testified at the suppression hearing that Langley asked him to turn off her engine after he told her that she would not be allowed to leave in her intoxicated condition. The trial court, sitting as the finder of fact, determined that Langley gave a valid consent to turn off her car. Because the appellate court defers to the superior position of the trial judge in matters of credibility, Rankin v. State, 338 Ark. 723 1 S.W.3d 14 (1999), we find no merit to Langley's assertion that consent was not given for entry of her car.

Because the officer's initial entry into the vehicle was lawful, we find that the seizure of the marijuana roach was admissible under the plain view exception to the generalrequirement of a search warrant. When an officer has not violated the Fourth Amendment in arriving at a place where an object can be plainly viewed, there are two requirements for a warrantless seizure: first, the object must be in plain view and its incriminating character must be "immediately apparent"; second, the officer must be lawfully located in a place to plainly view the object and must have a lawful right of access to the object. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998) (citing Horton v. California, 496 U.S. 128 (1990)). Because Deputy Rogers saw the marijuana roach lying in plain view on the carpet of Langley's car when he opened the door, and because Langley had consented to his turning off the car engine, the trial court did not err in denying the suppression motion regarding the marijuana roach.

Langley argues that the inventory of items in her car violated her Fourth Amendment rights as well as Arkansas Rules of Criminal Procedure. As a general rule, searches conducted outside the judicial process without prior approval by a judge or magistrate are per se unreasonable under the Fourth Amendment, subject only to a few specifically established exceptions. Fultz v. State, supra. When the appeal involves a challenge to the legality of a warrantless search and seizure, the State has the burden of establishing an exception to the warrant requirement. Id.

Rogers testified that it was department policy to inventory the contents of a vehicle to be towed as the result of an arrest, but he was unable to specify the pertinent subsection of the policy. The printed policy, however, was introduced into evidence. It includes subsection (a)(5), which states that officers may tow "any vehicle found on the public streetor grounds unattended by the owner/operator that constitutes a hazard or is parked in such a manner as to be in violation of the law." We now examine this policy in conjunction with our case law and rules of criminal procedure.

In Thompson v. State, supra, an officer stopped the appellant for malfunctioning taillights, cited him for having no valid driver's license or insurance papers, and determined that the car would have to be towed because it created a hazard on the roadside and would be vandalized. The supreme court addressed the appellant's argument that drugs and paraphernalia found in his car should be suppressed because there was no legal basis for the inventory search that led to their discovery, stating:

It is well settled that police officers may conduct a warrantless inventory search of a vehicle that is being impounded in order to "protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen or vandalized property, and to guard the police from danger." Colorado v. Bertine, 479 U.S. 367 (1987); see also Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). An inventory search, however, may not be used by the police as a guise for "general rummaging" for incriminating evidence. Florida v. Wells, 495 U.S. 1 (1990); Welch v. State, supra. Hence, the police may impound a vehicle and inventory its contents only if the actions are taken in good faith and in accordance with standard police procedures or policies. See Florida v. Wells, supra; Colorado v. Bertine, supra; Welch v. State, supra. In Welch v. State, supra, we clarified that these standard procedures do not have to be in writing, and that they may be established by an officer's testimony during a suppression hearing.

333 Ark. 92, 97-98, 966 S.W.2d 901, 904. Absent a showing that the true intent of the police officers was to conduct an evidentiary search, the testimony of police officers that they always take inventory of impounded vehicles is sufficient. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997).

In the present case, Langley's car created a hazard where it was parked in the alleyand blocked other traffic, and she was not permitted to drive it because of her intoxicated condition. We find that this constituted good cause under Ark. R. Crim. P. 12.6 for Deputy Rogers's impounding the car and inventorying its contents. See Thompson v. State, supra. We further find that Rogers's actions in impounding Langley's car and inventorying its contents were done in good faith and in accordance with standard policies of the White County Sheriff's Department. See Thompson, id.; Ark. R. Crim. P. 12.6. Therefore, we hold that the trial court properly denied Langley's motion to suppress the evidence of methamphetamine, drug paraphernalia, and marijuana found in the inventory.

Affirmed.

Robbins and Vaught, JJ., agree.