Cynthia Brannon and Amanda Boren v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 01-518

October 30, 2002

CYNTHIA BRANNON

and AMANDA BOREN APPEAL FROM POPE COUNTY

APPELLANTS CIRCUIT COURT

VS.

HONORABLE JOHN S. PATTERSON,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

A Pope County jury found appellants, Cynthia Brannon and Amanda Boren, who are sisters, guilty of possession of methamphet amine and of manufacturing that controlled substance. They both received concurrent sentences of twenty years in prison. On appeal, appellants challenge the denial of their motion to suppress evidence seized in a search of Boren's person during a traffic stop and the subsequent searches of Boren's home. We find no error and affirm.

While on patrol early in the evening of July 7, 1999, Deputy David Parks observed a vehicle pull out of a residential driveway and head towards him in the opposing lane of traffic. According to Parks, he stopped the vehicle, a pick-up truck, because it crossed the center line. Brannon was driving, and Boren was a passenger, as was Boren's daughter. Parks testified that both women seemed unusually nervous and were visibly shaking. He obtained their drivers' licenses and ran a background check that showed that neither one of them had any outstanding warrants. He said that, because of their nervous behavior, he asked for and obtained permission from Brannon to search the vehicle. Before commencing the search, Parks had Brannon step out of the vehicle, and he said that he asked her, "for his safety," "if it would be okay if she would empty her pockets." Brannon did not respond verbally, but she pulled out her pants pockets revealing that nothing was in them. Parks instructed Brannon to stand at the front of the vehicle and had Boren get out. He then asked Boren "the same thing" he had asked of Brannon, "if she would mind emptying her pockets" out of concern for his safety. Parks said that Boren responded by saying, "okay," and that she began handing him wads of cash from her pockets, totaling around seven hundred dollars. When she had finished handing him the money, Parks noticed that there remained a bulge in her pocket, and he asked her to removeeverything from her pocket. He said that she began crying and handed him a small change purse, saying "Here, take it." Parks opened it and found small bags of methamphetamine inside. Parks arrested Boren and began the search of the truck.

In the passenger compartment, Parks found methamphetamine in Brannon's purse. In the bed of the truck, he found a trash bag that contained a coke bottle with tubing that was said to be an HCL generator used in the process of manufacturing methamphetamine. When Parks opened the bag, a mist of dust blew in his face, and he could smell the odor of ether. Parks arrested Brannon and called the local drug task force for assistance.

After the task force arrived, the officers decided to apply for a warrant to search the residence from which Brannon's vehicle had entered the highway. Parks and Officer William Kelly went to secure the residence, and they pulled into the driveway. Both officers testified that they could smell the odor of ether about the house when they opened the doors of their vehicle. They knocked on the front door, but no one answered. They knocked on the carport door, but did not receive an answer. They saw that a vehicle was parked there that had a child seat in it. Officer Kelly testified that a television and light were on and that they peered into a front window. They saw what they believed to be a child slumped over a couch. Kelly said that, because they fearedthe child was in danger, he went back to the front door and pounded on it, yelling that he was a police officer. Again no one responded, and they tried to gain entry by the back door, but it was locked. At the back of the house, they found an opened window that had chemical vapors coming out of it. Kelly boosted himself up to the window and saw that the door was closed and that a fan was blowing out the fumes. He said that the fumes were so strong that he was almost overcome by them. Parks lifted Kelly inside, and Kelly went to the room where he had seen the child. He discovered, however, that it was not a child but a life-like, life-sized doll. Kelly let Parks inside, and they went from room to room to check if other persons were there. Finding no one, they got out of the house. The officers testified that they were inside no more than five minutes. They saw table salt in the bathroom; denatured alcohol and acetone cans in the kitchen and laundry room; and glass jars in the kitchen that either had white sediment or a dark liquid substance in them.

A warrant was obtained for the residence. The affidavit included the details of the traffic stop and what the officers had observed both before and during their entry into the house.

In this appeal, appellants do not question the validity of the stop, and Brannon concedes that she consented to a search of her truck. At issue is the search of Boren's person and the officers'initial entry into the home and the ensuing warrant. When reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of the circum stances and reverse only if the ruling was clearly against the preponderance of the evidence. Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001).

As a preliminary matter, the State argues that Brannon does not have standing to contest either search. Brannon agrees that she does not have standing to challenge the search of Boren's person, but she argues that she does have standing to question the search of Boren's residence.

Rights secured by the Fourth Amendment are personal in nature, and may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128 (1978). Thus, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. Fouse v. State, 73 Ark. App. 134, 43 S.W.3d 158 (2001). The pertinent inquiry regarding standing is whether a defendant manifested a subjective expectation of privacy in the area searched. Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). A person's Fourth Amendment rights are not violated by the introduction of damaging evidence secured by a search of a third person's premises. Whitham v. State, 69 Ark. App. 62, 12 S.W.3d 638 (2000). Although an overnight guest in a home may claim the protection of the FourthAmendment, one who is merely present with the home-owner's consent may not. Minnesota v. Carter, 525 U.S. 83 (1998). Likewise, one is not entitled to automatic standing because an element of the offense with which she is charged is possession of the thing discovered in the search. Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998). The defendant, as the proponent of the motion to suppress, bears the burden of establishing that her Fourth Amendment rights have been violated. Fouse v. State, supra.

At the hearing, Boren testified that the residence in question was her home. Appellants' father testified that only one of his daughters lived there. Brannon testified that she lived in Centerville at the time these events took place. There was no other testimony regarding Brannon's status with respect to the residence. On this record, we cannot conclude that appellant met her burden of showing that she had a legitimate expectation of privacy in Boren's home.

Boren's first argument is that Parks had no reason to suspect that she was armed and presently dangerous, and thus he had no grounds to conduct the pat-down search of her body under Ark. R. Crim. P. 3.4 and Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985). Officer Parks testified, however, that he obtained her consent for the search of her pockets. Rule 11.1 of the Arkansas Rules of Criminal Procedure provides that an officer may conductsearches and make seizures without a search warrant or other color of authority if consent is given to the search. Although Boren testified at the hearing that she did not give her consent, but rather submitted to Park's directive to empty her pockets, this conflict in the testimony was for the trial court to resolve, and we defer to the trial court in its assessment of witness credibil ity. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). The trial court could find that Boren consented to the search; consequently, Boren's argument must fail because reasonable suspicion is not necessary for an officer to request consent for a search. Howe v. State, 72 Ark. App. 466, 39 S.W.3d 467 (2001). Boren further argues that Parks lacked the authority to open the change purse. It is our conclusion that opening the change purse fell within the scope of her consent. In Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000), the appellants had consented to a search of their vehicle. Marijuana was found in a tin can under a seat, and the appellants argued that the officers exceeded the scope of the consensual search by opening the can. The court observed that the standard for measuring the scope of consent under the Fourth Amendment is that of objective reasonableness -- what the typical person would have understood by the exchange between the officer and the person who is consenting to the search. The court said that the appellants understood the object of the searchand did not stop the officer from opening the can, and the court held that it was reasonable for the officer to conclude that their consent included permission to open any containers found in the car's interior. In this case, the appellant had consented to a search of her person, and she handed the purse to the officer and said, "Here, take it." Boren did not qualify that statement or otherwise place any limits on the officer's actions, and she did not stop the officer from opening the purse. We believe that the officer could reasonably conclude that he had her consent to open the change purse.

We are also convinced that this evidence would have been inevitably discovered. Under the inevitable discovery doctrine, evidence that would otherwise be suppressed is admissible if the police would have inevitably discovered the evidence by lawful means. Willoughby v. State, 76 Ark. App. 329, 65 S.W.3d 453 (2002). Prior to Parks' request for Boren to empty her pockets, he had already obtained Brannon's consent to search the truck. When he eventually did so, he found the HCL generator. A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that the person has committed a felony. Ark. R. Crim. P. 4.1(a)(1). Reasonable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction, and in assessing the existenceof reasonable cause our review is liberal rather than strict. Jones v. State, 348 Ark. 619, 74 S.W.3d 663 (2002). Because Officer Parks had the authority to arrest Boren upon finding the HCL generator, he also would have had the authority to conduct a search incident to that arrest. Ark. R. Crim. P. 12.1; Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000).

Boren's final argument concerns the searches of her home. She contends that the officers' warrantless entry into the home was unlawful or that it was excessive in scope. She also argues that the warrant that issued was tainted because the officers' observa tions from inside the home were used to establish probable cause for the warrant.

We begin with the basic premise that all warrantless searches are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. Bratton v. State, 77 Ark. App. 174, 72 S.W.3d 522 (2002). The burden of proof is on the State which seeks to justify the search. Mays v. State, 76 Ark. App. 169, 61 S.W.3d 919 (2001).

Here, the State sought to justify the initial entry into the home under the emergency exception to the warrant requirement set out in Ark. R. Crim. P. 14.3. This rule provides in part that an officer who has reasonable cause to believe that a premises contains individuals in imminent danger of death or serious bodilyharm 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 or bodily harm. Searches under this exception must be strictly circumscribed by the exigencies which justify its initiation. Mincey v. Arizona, 437 U.S. 385 (1978). However, the police may seize evidence that they observe in plain view while conducting legitimate emergency activities. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997).

The officers in this case testified that they entered the home because they believed a child was in danger. They saw what they thought was a child slumped over a couch in a home from which noxious fumes were being emitted. Boren's argument is that the officers' testimony is not worthy of belief. She points to the testimony of her father who lived nearby and who said that the officers did not appear to be in any particular hurry. She thus contends that the officers entered the house to gather evidence and not out of any concern for a child. This argument also presents a matter of witness credibility, a determination that is to be resolved by the trial court. We cannot say that the trial court's finding of exigent circumstances is clearly against the preponder ance of the evidence.

Boren also argues, alternatively, that the exigency disap peared once the officers discovered that the child was actually adoll and that the officers should have left the home immediately instead of conducting a room-to-room search for other persons. We disagree. It was the officer's testimony that they were inside the home no more than five minutes. A light and a television were on, indicating that someone might be inside the home. The fumes were described as being especially strong inside the house such that the officers had concern for their own safety. We do not think it unreasonable for the officers to believe it necessary to check on the welfare of other persons who might have been in the house and endangered by the fumes. We find no error on this point.

Given our holding that the officers' initial intrusion into the home was not violative of the Fourth Amendment, we necessarily find no merit in Boren's argument that the warrant was infected by illegality. Where the tree is not poisonous, neither is the fruit. Criddle v. State, 338 Ark. 744, 1 S.W.3d 436 (1999). Even had Boren prevailed in her argument that the initial entry into the home was unlawful, we would uphold the denial of the motion to suppress on this point because the warrant was supported by independent probable cause. The supreme court has held that offending information can be excised from a probable-cause affidavit to determine if the affidavit nevertheless supports the issuance of the search warrant. See Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997). Excising that portion of the affidavit reciting what the officers saw inside the house, the affidavit contained information that Boren and Brannon were in possession of metham phetamine; that Boren was in possession of a large amount of cash; that an HCL generator was also found in the vehicle in which they were riding; that Boren and Brannon were seen leaving the residence moments prior to the stop; and that the officers detected the odor of ether coming from the residence when parked in the driveway. This information alone served to establish probable cause for the issuance of the warrant. The decision of the trial court is affirmed.

Affirmed.

Vaught and Crabtree, JJ., agree.