Johnny Ray Calkin v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION I

JOHNNY RAY CALKIN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-158

October 9, 2002

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[NO. CR-2000-120, CR-2000-128]

HONORABLE ROBERT EDWARDS,

CIRCUIT JUDGE

AFFIRMED

Appellant, Johnny Ray Calkin, entered conditional pleas of guilty to one count of manufacturing methamphetamine, two counts of possession of methamphetamine with the intent to deliver, and one count of simultaneous possession of drugs and firearms, for which the trial court sentenced him to a total of 120 months in the Arkansas Department of Correction. Pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, appellant reserved his right to appeal from the trial court's denial of his motions to suppress.1 On appeal, Calkin contends that the court erred in denying his motion to suppress evidence seized on January 20, 2000, as a result of the officers' entry into the curtilage of a recreational vehicle and erred in denying his motion to suppress evidence seized on February 8, 2000, during a search of his truck. We affirm.

I. January 20, 2000, search and seizure

Detective Edwards testified that around 11:00 p.m. on January 20, he was on patrol, driving south on Highway 367 outside of Bradford, Arkansas. Driving with his window down, he smelled ether, an odor that he associated with the manufacture of methamphetamine. Officer Josh Chambliss arrived and acknowledged and later testified that he was overwhelmed by the smell of ether. Chambliss also testified that he later smelled ammonia. Edwards determined the direction from which the odor was emanating, and the officers entered an open field, crossed a fence, and took a vantage point on a ridge one hundred yards from the road. There, they watched a recreational vehicle that was another seventy-five yards away and located on Nathan Bennett's property. Around 11:30 p.m., Edwards saw a man leave the RV and throw things around in the yard and return to the trailer.

Edwards later saw a truck leave the Nathan Bennett residence, which was one hundred yards from the RV, and arrive at the RV. After ten minutes, the truck left the RV and entered Highway 367. Edwards followed the vehicle onto the highway, where he stopped it after watching the truck twice cross the center line. The driver, Phyllis Crab, consented to a search of the vehicle, during which Edwards found drugs and drug paraphernalia. Crab told him that she had just come from the RV. Another officer, Phillip Hydron, testified that Crab told him that she had obtained methamphetamine from Lisa Bennett. There was no testimony, however, that Lisa Bennett was at the RV.

Around 3:00 a.m., a second truck left the RV and traveled down Nathan Lane. Theofficers decided to stop the vehicle to speak to its occupants. Edwards testified that he stopped the vehicle "to find out who was in it and what they had been doing. .... I really didn't feel like we would find any drugs on him." Edwards, however, further testified that they thought the person might be manufacturing methamphetamine. He based this conclusion on his smelling of the ether, the presence of people in the yard of the RV at a late hour of the night, and a tip received from a confidential informant that they were cooking methamphetamine at that residence.

Before the truck pulled onto the highway, Edwards pulled into Nathan Lane without activating his blue lights, blocking the road with his patrol car and stopping within six or seven feet of the vehicle. The driver of the truck, later identified as Calkin, began backing up, throwing the truck into reverse and slinging gravel. An officer in another patrol car went around Edwards and turned on his blue lights. Calkin jumped out of the truck and then over a fence. Edwards followed, caught Calkin after a thirty-yard chase, and arrested him for fleeing. He then searched Calkin and found methamphetamine on him. Other bags of methamphetamine were found nearby.

Other officers then secured the RV by entering and removing its two occupants. Outside of the RV, Edwards saw four hydrochloric acid gas generators, along with lithium batteries that are commonly used in the manufacture of methamphetamine, peel mud contained in plastic cans and glass containers, starter fluid cans, an empty drain cleaner container, and an oxygen tank with a brass fitting on it that was completely blue. Chambliss saw several butane bottles that he had observed being carried to the trailer. They obtainedand executed a search warrant on the RV the next morning. No personal items of Calkin were found in the RV.

According to Chief Danny Roberts, he had arrested Randy Bennett, who resided at the RV, one or two years before on drug-related offenses. Further, he testified that a reliable informant from whom he had received reliable information on ten previous occasions had told him that the RV was being used to manufacture methamphetamine. Officer Chambliss also testified that he had received information regarding methamphetamine activity in the area. Roberts further testified that when he arrived at the RV, he smelled ether and ammonia. Officer Hydron also testified that he smelled ammonia at the RV.

Calkin testified that he stayed overnight at Randy Bennett's RV on some occasions, but he did not pay rent. He also stayed at two or three other residences, as well as eight or ten times at Nathan Bennett's residence where he likewise did not pay rent. Calkin further testified that he did not leave any personal items at the RV and had not stayed at the RV in the three or four days prior to his arrest.

After hearing the evidence presented, the court opined that the smell of ether and ammonia, along with the information received from a confidential informant regarding drug activity at the RV and the information they received from Crab, gave the officers probable cause to stop Calkin's truck, and Calkin's flight further gave them probable cause to stop and arrest him. The court further concluded that the smell of ether and ammonia in an open field gave officers probable cause to enter the field and that the smelling and viewing did not violate Calkin's Fourth Amendment rights. The court also concluded that Calkin did nothave standing to object to a search of the RV because he had not stayed at the RV for three or four days, did not pay rent, and had no personal effects at the RV. On appeal of the court's denial of his motion to suppress, Calkin argues only that the officers violated his expectation of privacy by conducting surveillance into his curtilage.2

In summarizing the law on standing, the Arkansas Supreme Court has recognized that "Fourth Amendment rights are personal in nature and may not be asserted vicariously," and "[a] person who is aggrieved by an illegal search and seizure only through introduction of evidence secured by the search of a third person's premises or property has not had any of his Fourth Amendment rights violated." Duck v. State, 346 Ark. 148, 152, 61 S.W.3d 135, 137 (2001). The court also noted that a person must have a legitimate expectation of privacy at stake in order to assert Fourth Amendment rights. Id. Further, the court stated that "[t]he proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights have been violated." Id. at 152, 61 S.W.3d at 138.

Here, Calkin failed to establish that he had a legitimate expectation of privacy at stake in either the RV, its curtilage, or the farm; thus, we conclude that he lacked standing to challenge the officers' presence. Calkin asserts that he was a guest in the RV. Presumably, it is his presence as a guest in the RV that forms the basis for his assertion that he had a legitimate expectation of privacy in the curtilage. In determining whether a visitor to a residence had standing to challenge a search of the residence, the Arkansas Supreme Courthas considered such facts as whether the defendant was an overnight guest at the time the search occurred, or whether the defendant owned, leased, or maintained control over the house. See Marshall v. State, 316 Ark. 753, 757, 875 S.W.2d 814, 817 (1994); Davasher v. State, 308 Ark. 154, 162-63, 823 S.W.2d 863, 868, cert. denied, 504 U.S. 976 (1992). As previously noted, Calkin testified that he did not pay rent at the RV, had no personal items in the RV, and had not been an overnight guest at the RV in the three or four days prior to his arrest. Such evidence does not establish that Calkin owned, leased, or maintained control over the house, nor does it establish that he was an overnight guest at the time the search occurred. Consequently, we conclude that Calkin did not meet his burden of proof in establishing that he had standing to challenge a search of either the RV, its curtilage, or the farm, and we affirm the trial court's ruling.

II. February 8, 2000, search and seizure

With regard to the February 8 search and seizure, Detective Bill Lindsey, formerly of the White County Sheriff's Office, testified that on that day he was investigating a report of a stolen truck when he received information from Chief Roberts that Calkin was driving a truck similar to the one stolen. Lindsey testified that they were looking for a 1996 or 1997 red Chevrolet step-side pickup truck with side rails. Lindsey and Detective Clayton Edwards drove to Nathan Lane, a lengthy driveway on Nathan Bennett's property, just south of Bradford, Arkansas. Lindsey testified that they drove to a barn beside Nathan Bennett's residence. There, they found Calkin standing in front of his truck.

Calkin told Lindsey that he had recently purchased the truck, naming from whom hemade the purchase. Lindsey later determined that Calkin's story was accurate. Lindsey noticed some differences between the stolen truck and Calkin's truck. While Edwards spoke to Calkin, Lindsey ran a license check on the truck. Even though Lindsey initially testified that the license did return to the truck, he subsequently testified that the plate belonged to a similar vehicle, but it was not the same vehicle.

Lindsey walked towards the truck to examine the vehicle identification number. When he reached the open driver's side door, he saw a small pistol lying in the seat. After Calkin admitted to Edwards that he was a convicted felon and that it was his gun, Calkin was placed under arrest for being a felon in possession of a firearm. While taking Calkin into custody, Edwards searched him and found bags of methamphetamine in his pocket. Lindsey also testified that he had determined that it was not the same truck he was looking for even before he checked the VIN and saw the pistol.

Edwards testified that he and Lindsey went to speak to Calkin because Lindsey had received information that Calkin might be in possession of a stolen vehicle. Edwards testified that they drove by Nathan Lane and saw a vehicle that fit the description. Edwards stated that he "looked up at the property and noticed a pickup up there and somebody moving around. .... And we went - turned around and went back up there, and it just so happened it was Mr. Calkin." From Highway 365 the officers went up Nathan Lane and stopped and exited their vehicle. While Edwards was speaking with Calkin, Lindsey called him over and showed him a small pistol lying in the seat of Calkin's truck. Upon questioning, Calkin told Edwards that he was a felon. Edwards testified that while he wasarresting Calkin for being a felon in possession of a firearm, he patted Calkin down, and in Calkin's left front pocket he found some small plastic bags containing an off-white powder substance.

After hearing the evidence, the court concluded that Calkin had no reasonable expectation of privacy to challenge the officers' presence on the Bennett property. Further, the court concluded that because Calkin's license plate did not match the vehicle, Lindsey properly approached the truck to examine the VIN.

Calkin contends that the officers' presence on the Bennett property violated his expectation of privacy. Further, Calkin asserts that Lindsey was aware that the truck was not the stolen vehicle he was investigating before he checked the truck's VIN. Thus, he asserts that the investigation was over at that point, that further investigation by the officers was illegal, and that consequently the items seized should be suppressed.

We conclude that Calkin did not have a legitimate expectation of privacy at stake, and therefore, he lacked standing to challenge the officers' presence on the Bennett property. Calkin apparently bases his expectation of privacy on his employment at the farm; he did not present any other evidence at the hearing that may have supported his assertion. Our court has observed that in determining whether an employee has standing to challenge a search, we look to such factors as whether the employee had a property or possessory interest in the things seized or the place searched, whether he had a right to exclude others from that place, whether he exhibited a subjective expectation of privacy, whether he took precautions to maintain privacy, and whether he was legitimately on the premises. Embry v. State, 70 Ark.App. 122, 126, 15 S.W.3d 367, 370 (2000). While Calkin was legitimately on the farm, none of the other factors were established by Calkin. Thus, we conclude that Calkin failed to establish that he had standing to challenge the officers' presence.

Further, we hold that the court correctly concluded that the officers' investigation of the truck was proper. Lindsey testified that the license plate did not belong to the truck and that he observed the pistol in the open truck after he walked towards the truck to examine the VIN. We have previously held that in investigating a vehicle with an unmatched license plate, an officer may look inside the vehicle and remove any firearms in plain view. See Saul v. State, 33 Ark. App. 160, 803 S.W.2d 941 (1991). Upon discovery of the firearm, the officers could arrest Calkin for being a felon in possession of a firearm and seize any illegal items in his possession. Ark. R. Crim. P. 4.1(a), 12.2, 12.4(a) (2002). Consequently, we affirm the trial court on this point as well.

Affirmed.

Jennings and Griffen, JJ., agree.

1 We previously ordered rebriefing to allow appellant an opportunity to prepare an abstract showing that he complied with Rule 24.3(b).

2 Appellant does not raise on appeal any issues regarding the stopping of his truck and the seizures resulting from the stop.