Olga Margarita Paz v. State of Arkansas

ar01-756

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CACR01-756

JUNE 26, 2002

OLGA MARGARITA PAZ AN APPEAL FROM THE WASHINGTON APPELLANT COUNTY CIRCUIT COURT

[CR-2000-1780]

v.

HONORABLE WILLIAM A. STOREY,

STATE OF ARKANSAS JUDGE

APPELLEE

AFFIRMED

The appellant, Olga Margarita Paz, was convicted in the Washington County Circuit Court of possession of marijuana with intent to deliver. She was sentenced to six years in the Arkansas Department of Correction. For reversal, appellant asserts that the trial court erred in denying her motion to suppress and her motion for directed verdict. We affirm.

A motion for directed verdict is a challenge to the sufficiency of the evidence. See Hughes v. State, 74 Ark. App. 126, 46 S.W.3d 538 (2001). Consequently, we must first address this issue because the Double Jeopardy Clause precludes a second trial when a judgment of conviction is reversed for insufficient evidence. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct, or circumstantial. Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any that may have been erroneously admitted, in the light most favorable to the verdict. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Hinzman v. State, 53 Ark. App. 256, 922 S.W.2d 725 (1996).

In the present case, appellant's challenge to the sufficiency of the evidence is premised on the assertion that the State failed to prove she constructively possessed the marijuana found in her backyard. Constructive possession, which is the control or the right to control the contraband, may be imputed when the contraband is found in a place that is either accessible to the defendant and subject to her exclusive dominion and control, or subject to the joint dominion and control by the defendant and another. See Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); Hughes v. State, supra. In order to prove constructive possession, the State must prove beyond a reasonable doubt that (1) the defendant exercised care, control, and management over the contraband, and (2) the accused knew the matter possessed was contraband. Hughes v. State, supra.

The facts of this case are as follows. On September 27, 2000, Officer Harvey Embry of the Farmington Police Department stopped Binicio Almaguer for speeding. Almaguer was placed under arrest for failure to have a driver's license and outstanding traffic tickets. During an inventory search of Almaguer's vehicle, a pound of marijuana was found. Almaguer was transported to the Farmington Police Department. While going throughAlmaguer's wallet, Detective Mike Henderson of the Fourth Judicial Drug Task Force came across a business card with the name "Margarita" on it and a phone number. Through the phone company, the officers determined that the phone number belonged to the appellant, Olga Margarita Paz.

The officers proceeded to appellant's home, where they made contact with appellant. While at appellant's home, the officers conducted a search for drugs. Officer Wayne Price of the Farmington Police Department testified that the back of appellant's home is enclosed by a six to eight foot privacy fence. Prince testified that while the officers searched appellant's home, he entered the backyard to secure the back of the home. He stated that upon entering the backyard, he detected a strong odor of what he believed was marijuana. Price stated that his investigation of the odor led him to a green recycling container that was located in the southwest corner of the fence. Price testified that near the container, he found a white plastic bag, which he tore open. Prince testified that the white plastic bag was located about thirty to forty feet from the back of the home. Inside the bag, Price stated that he found a plastic baggie that he believed contained marijuana. Price stated that he then took the baggie to Detective Henderson.

Detective Henderson testified that he asked Price to show him where he had found the marijuana and that when he accompanied Price to the backyard, he too detected an odor that smelled like marijuana. Henderson stated that as they got closer to the recycling container, the odor grew stronger. Henderson testified that inside the recycling container, he found another white bag that contained additional marijuana.

Agent Michael Boze of the Immigration and Naturalization Service (INS) testified that he accompanied the officers to appellant's home. He stated that while the officers conducted the search he remained with appellant and her daughters. Boze stated that he questioned appellant about her immigration status. Boze testified that after Prince came in to talk to Henderson, appellant abruptly changed the topic of their conversation and that for no apparent reason she informed him that her family never used the backyard. Boze also testified that when appellant was shown the marijuana, she appeared surprised and asserted that she did not know where the marijuana came from.

Appellant testified that she is an herbalist and that she sells plants and herbs to her neighbors. She testified that while the officers conducted the search, Agent Boze asked her when was the last time her family had used the backyard. Appellant denied saying she never let her daughters play in the backyard. Appellant testified that she lived at the residence with her three daughters and Martin Acosta.1 She stated that Acosta had been renting from her for about two months. Appellant testified that she was surprised when the officers showed her the marijuana. She stated that there is an alley behind her backyard and that people walk through the alley all the time. Appellant asserted that the marijuana was not hers and that she believed that Almaguer had placed the marijuana in her backyard earlier that day when he came by seeking a haircut. Appellant did admit that the recycling container belonged to her and that she used it.

The fact finder is not required to believe the appellant's testimony since she is theperson most interested in the outcome of the case. Harris v. State, 72 Ark. App. 227, 36 S.W.3d 819 (2000). Because appellant was the owner of the home and she admitted using the recycling container, the fact finder could infer that she exercised some form of care, control, and management over the contraband and that she knew that the matter possessed was contraband.

Appellant next contends that the trial court erred in denying her motion to suppress. She specifically asserts that (1) her consent was not freely and voluntarily given and (2) the search exceeded the scope of her consent. In reviewing a trial court's ruling on a motion to suppress, the court makes an independent determination based on the totality of the circumstances, and reverses only if the ruling is clearly against the preponderance of the evidence. Mays v. State, 76 Ark. App. 169, 61 S.W.3d 919 (2001). Because the preponderance of the evidence turns heavily on the question of credibility, we defer to the superior position of the trial court in determining which evidence is to be believed. Pyles v. State, 55 Ark. App. 201, 935 S.W.2d 570 (1996).

The consent for a warrantless search of an individual's home must be given freely and voluntarily, and the burden rests upon the State to prove by clear and positive evidence that consent was given freely and voluntarily. Hadl v. State, 74 Ark. App. 113, 47 S.W.3d 897 (2001). On appeal, the reviewing court makes an independent determination based on the totality of the circumstances to determine if the State has met its burden. Id. At the suppression hearing, appellant testified that when she opened her door she was confronted by five or six police officers; however, she later stated that there were only four officers. She also stated that the officers began searching prior to her consent. Appellant also testified that the appearance of the officers "shook [her] up" and that she felt like she had to consent. During cross-examination, appellant admitted that she gave the officers permission to search. There was no evidence that the officers did anything that affirmatively communicated to appellant that she was not free to withhold consent. Thus, based on the totality of the circumstances, we cannot say that the State failed to meet its burden of proving that appellant's consent was freely and voluntarily given.

Appellant also asserts that the search exceeded the scope of her consent. Arkansas Rule of Criminal Procedure 11.3 provides "[a] search based on consent shall not exceed, in duration or physical scope, the limits of the consent given." Generally, the scope of a search is limited by its expressed object. Howe v. State, 72 Ark. App. 466, 39 S.W.3d 467 (2001). The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness- what the typical reasonable person would have understood by the exchange between the officer and the suspect. See id. (citing Florida v. Jimeno, 500 U.S. 248 (1991)).

Detective Henderson testified that when the appellant answered the door, he identified himself and Agent Boze. He stated that he asked appellant if she spoke English and that appellant responded that she did but not very well. Henderson explained to appellant in English that they had information that drugs were being kept at her residence. When it appeared that appellant did not understand, he asked Agent Boze to explain to her in Spanish. Henderson stated that Boze spoke to her and then told the officers that appellanthad consented to a search.

Agent Boze testified that he has had thirteen semester hours of Spanish plus a five-week immersion course and that he has spoken Spanish everyday of his employment with··²

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²··INS. Boze testified that appellant did not limit the scope of the search and that she did not object when the officers started looking in the backyard. Boze stated that he remained with appellant while the officers conducted the search. He also stated that while the officers were searching, appellant mentioned that her family never went in the backyard. During cross-examination, Boze stated that he does not consider himself fluent in Spanish. The following exchange also occurred during cross-examination of Boze:

Appellant's Counsel: Okay. Can you tell me exactly what you said to her?

Boze: To the best of my recollection I told her that these officers had information that there were drugs at this place and that they wanted to look.

Appellant's Counsel: Okay, do you recall whether or not you said home, residence, place?

Boze: I don't believe I did, I believe I just said they wanted to look, you know, here, ake [sic] is the word I would have used, which just means here, around here.

Appellant's Attorney: Ake? [sic] All right. You said first she didn't respond?

Boze: Correct.

Appellant's Counsel: Because she was not understanding you- could you-was that the problem?

Boze: No, it seemed like she might have been a little hesitant at first.

Appellant's Counsel: Okay, and then you went on to explain this guy has been picked up with a pound of marijuana, explained the whole apparent connection?

Boze: Right.

Appellant's Counsel: And exactly what did you say to her during that conversation?

Boze: Basically what you said. I said look, we - - this person that was arrested had marijuana in his car, you've already told us that he was here today, these officers just want to make sure that there's no drugs here, is it okay if they look.

Appellant's Counsel: And she said?

Boze: She said esta bien, no adrug ake, [sic] which means it's okay, there's no drugs here.

At the suppression hearing, appellant testified using an interpreter. Appellant testified that prior to giving consent she saw the officers going around the side of her house to the backyard. She also testified that she was aware that someone was in her backyard, and that she did not object because she thought it was car headlights. However, appellant later testified that she thought the officers were searching the side of her home with flashlights. During her testimony, appellant stated that:

[W]hile I was talking to the officers I noticed the one going back there and I kind of moved back to see where they were going and the police offier [sic] said come back here and he continued to talk to her [sic] and at that point the officer that speaks Spanish came in. At that point he asked me if they could search the house.

She described her conversation with Boze as follows:

Appellant's Counsel: All right. When Agent Boze asked you about searching, did he say he wanted to search the residence, the house? Exactly what did he say?

Appellant: The interpreter: The house.

Appellant's Counsel: The house? And you said go ahead and search because you're searching anyway?

Appellant: The interpreter: Yes.

Appellant's Counsel: Meaning the house? What?

Appellant: The interpreter: The house because he said ake [sic] which is here.

Appellant's Counsel: Okay, when he said ake [sic] you understand he meant in the house?

Appellant: The witness: Um-hum. The interpreter: Yes.

(Emphasis added).

Arkansas Rule of Criminal Procedure 11.5 (2002) provides that consent "may be withdrawn or limited at any time prior to the completion of the search." However, the police are not required to advise the person giving consent of their right to withdraw consent or limit the scope of their consent. See Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979). In the case at bar, the appellant was aware that the officers were in her backyard prior to her giving consent. She placed no limits on where the officers could search. We cannot say that a reasonable person could not have inferred that the consent to search included the backyard. Therefore, the scope of the search did not exceed reasonable bounds.

Affirmed.

Hart, J., agrees.

Bird, J., concurs.

Sam Bird, Judge, concurring. I agree with the majority's result in this case; however, I write separately to clarify the effect of Paz's failure to object to the officers' presence in the backyard after consent to search was obtained, as well as to urge the adoption of the approach to determining the scope of consent taken by the United States Court of Appeals for the Eighth Circuit. Our court has long recognized that acquiescence to the police conduct is not sufficient to support a finding of voluntary consent to search. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002); Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987); Hadl v. State, 74 Ark. App. 113, 47 S.W.3d 897(2001); Johnson v. State, 27 Ark. App. 54, 766 S.W.2d 25 (1989). However, at issue here is not whether their presence in the backyard affected the voluntariness of Paz's consent, as we have already determined that Paz voluntarily gave her consent; rather, at issue is the determination of the scope of her consent.

Our supreme court has acknowledged that a suspect's failure to withdraw or limit his consent to search can provide evidence of the scope of the consent. Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000). In Miller, the court concluded that:

The Millers placed no limits on [the officer] and what she could search. When [the officer] discovered the tin can containing the marijuana, neither of the Millers attempted to stop her from opening the can. It was reasonable for [the officer] to conclude that the permission granted by the Millers included a search of anycontainers found in the car's interior. Therefore, the scope of [the officer's] search did not exceed reasonable bounds.

This reasoning is dangerously circular in that, apparently, the scope of the consent is now determined by what actions the police engage in that are not objected to by the suspect, rather than by what the typical reasonable person would have understood by the exchange between the officer and the suspect as instructed in Florida v. Jimeno, 500 U.S. 248 ( 1991). However, it is the precedent given to this court by our supreme court and it directly addresses the case at bar. Therefore, Paz's knowledge of the officers' presence in the backyard and her failure to object to their presence led to a reasonable conclusion, under Miller, supra, that her consent encompassed the backyard.

Rather than engaging in such circular reasoning, I believe that the reasoning of the United States Court of Appeals for the Eighth Circuit, in Drummond v. United States, 350 F.2d 983 (8th Circuit 1965), cert. denied sub nom., Castaldi v. United States, 384 U.S. 944 (1966), is sound and should be applied to our review of the scope of consent. In Drummond, the court held that an outbuilding was encompassed by consent received in response to a general request to search. The court articulated that "if [the outbuilding garage] is subject to Fourth Amendment protection as part of the 'house' or curtilage, it should be equally subject to the effect of a consent to entry and search of one's 'residence.'" Drummond, 350 F.2d at 989.

As Paz's small, fenced backyard was protected under the Fourth Amendment ascurtilage to the residence, waiver of the protection afforded to her residence under the Fourth Amendment should be interpreted to waive the protection afforded to the curtilage as well.

1 Acosta was also charged with possession of marijuana with intent to deliver.