Lee Dunsworth v. State of Arkansas

ar01-968

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION III

CACR01-968

April 24, 2002

LEE DUNSWORTH AN APPEAL FROM POPE COUNTY

APPELLANT CIRCUIT COURT [CR01-140]

HON. DENNIS CHARLES SUTTERFIELD, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Lee Dunsworth entered a conditional plea of guilty to possession of a controlled substance and possession of drug paraphernalia. He appeals from the denial of his motion to suppress. We affirm and hold that the search was incident to appellant's lawful arrest.

Appellant entered into a written conditional plea agreement on April 30, 2001, whereby he pleaded guilty to possession of a controlled substance and possession of drug paraphernalia, reserving his right to appeal from the denial of his motion to suppress. He was sentenced to serve thirty-six months in the Arkansas Department of Correction, with an additional forty-two months suspended.

The events leading to appellant's arrest, as adduced at the hearing on the motion to suppress, are as follows. On February 28, 2001, appellant was a passenger in his son's truck, which was driven by appellant's wife, Shirley Dunsworth. At approximately 8:45 p.m., Officer Chris Ridenhour of the Russellville Police Department saw the truck and noticed that the light over the license plate was not working. When he stopped the vehicle, Mrs. Dunsworth told him that she was test-driving the vehicle. Upon checking their identifications, Ridenhour found that appellant had an outstanding warrant in Perry County and that the license was not registered to that vehicle. Mrs. Dunsworth received a ticket for having improper plates and no proof of insurance. Ridenhour testified that Mrs. Dunsworth could have taken the vehicle and left at that point, but he did not so inform her because he was not required to do so.

As Ridenhour was writing the citations, Officers Winesburg and Edgin arrived to assist him. They placed appellant under arrest based on his outstanding warrant. While Winesburg was handcuffing appellant, Ridenhour looked inside the vehicle and saw a full beer can and an open beer can on the floorboard. At some point during the stop, Ridenhour also received a phone call from an Officer Goodman who informed him that appellant had previously been arrested on drug charges. Ridenhour testified that after he issued Mrs. Dunsworth her citations she was free to leave, but because appellant had been arrested previously on methamphetamine charges, Ridenhour asked for consent to search the vehicle. He testified that Mrs. Dunsworth appeared agitated and nervous, but said, "I guess so." However, when Ridenhour subsequently informed her that she did not have to consent, shethen told him that she did not want him to search the vehicle. Ridenhour told her "that was O.K. and that I would get my narcotic dog to walk around the exterior of the vehicle."

The actions of the dog are in dispute, but Ridenhour stated that the dog signaled the presence of drugs. He testified that the dog tried to jump into the vehicle through the open door and scratched the door handle on the passenger side. Ridenhour testified that Mrs. Dunsworth was still free to leave at that point, but the vehicle was not. Ridenhour thereafter conducted a search of the vehicle. He found Mrs. Dunsworth's purse in the middle of the seat. Mrs. Dunsworth was arrested after Ridenhour found rolling papers, scales, and a pair of scissors with a black residue inside her purse. He continued the search inside the glove compartment and found a syringe (commonly used to inject methamphetamine), a cigarette package containing marijuana roaches, and nine plastic baggies with an off-white powder that was later identified as methamphetamine.

Ridenhour testified that only two or three minutes passed between appellant's arrest and the search of the vehicle. He admitted that the call from Officer Goodman was the main reason he wanted to conduct a search of the vehicle. He further admitted that prior to the search he had no reason to believe that either appellant or Mrs. Dunsworth had committed or were about to commit a felony, or that a misdemeanor involving injury to a person or damage to property had been committed.

Ridenhour stated that he uses his drug dog when conducting stops whenever he thinks drugs are present. He stated that he files a report every time he makes an arrest and contraband is found, but that he did not keep records on false alerts. Thus, he could nottestify with regard to his drug dog's accuracy in alerting for the presence of drugs.

In contrast to her original assertion that she and appellant were test-driving the vehicle, Mrs. Dunsworth testified at the suppression hearing that she and appellant were on their way to pay a utility bill when they were stopped. According to Mrs. Dunsworth, after Ridenhour took her license, he walked back to his car and remained there for fifteen or twenty minutes, then returned and informed them that appellant had an outstanding warrant. After appellant was arrested, Ridenhour asked if he could search the vehicle. When she asked him why he could not simply give her the tickets and let her go, Ridenhour told her that he needed to search her truck. She stated that she did not have the truck keys at this point, and that Ridenhour did not give her any indication that she could leave.

Mrs. Dunsworth further testified, in contrast to Ridenhour's testimony, that she never gave consent to have the truck searched. She stated that after Ridenhour told her to walk to the back of her son's vehicle, he closed her truck door, told another officer to keep an eye on her, and then walked back to his vehicle to get the drug dog. According to Mrs. Dunsworth, when the dog sniffed the truck, it sniffed at her tires and attempted to climb into the bed of the truck, then laid in the grass and began eating garbage. She testified that Ridenhour then "pulled the dog's chain, making him go back to the truck," then ran something underneath the dog's nose. Mrs. Dunsworth said the dog barked into Ridenhour's hand and he stated that was a sign that there were drugs in the truck.

Officer David Davis, also of the Russellville Police Department, interviewed appellant after appellant was informed of his Miranda rights. Davis stated that appellantadmitted he found the cigarette package at the parking lot of the utility office and when he saw that it contained methamphetamine and marijuana, he took it for his own use. Appellant testified that Davis accurately relayed the substance of his statement.

The State argued below that appellant had no standing to challenge the search, because pursuant to Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998), and Stanley v. State, 330 Ark. 642, 956 S.W.2d 170 (1997), a non-owner passenger has no standing to object to the search if the stop is legal. The State further argued that appellant's arrest was based on a warrant and that once he was arrested, the vehicle was subject to search without further probable cause, because the officers at that point were free to conduct a search for weapons, pursuant to Arkansas Rules of Criminal Procedure 12.1 and 12.4.

Appellant argued that he had standing because he had permission to use the truck. He also asserted that the testimony demonstrated the search took place because of the call received from Officer Goodman; therefore, this was plainly a search for drugs, not for weapons. He countered that the permissible scope of this search is governed by Arkansas Rule of Criminal Procedure Rule 3.1 and that the officers had no right to further detain the vehicle after the tickets were issued to Mrs. Dunsworth.

The trial court found that the initial stop was proper based on the fictitious tags and further found that the officer had probable cause to search the vehicle based upon the dog's alert. The court also found that appellant's inculpatory statement was admissible, and it denied appellant's motion to suppress.1 However, the court made no ruling with regard tothe State's standing argument, and the court expressly declined to rule on whether Mrs. Dunsworth was being detained.

I. Preservation of Appellant's Right to Appeal

The first issue we address is whether appellant properly preserved his right to appeal from his conditional guilty plea pursuant to Arkansas Rule of Criminal Procedure 24.3, because the failure to do so deprives this court of jurisdiction to hear the appeal. See Simmons v. State, 72 Ark. App. 238, 34 S.W.3d 768 (2000). Here, appellant's Conditional Plea Agreement was signed by appellant, the prosecutor, and appellant's defense counsel, but was not signed by the trial judge. The State concedes, and we agree, that appellant's right to appeal is preserved and that this court has jurisdiction.

In Simmons v. State, supra, this court dismissed an appeal from a conditional guilty plea for lack of jurisdiction where there was no indication that the prosecuting attorney consented to the guilty plea and where the plea on its face contradicted that it was conditional. That is not the case here. Here, even though the trial judge did not sign the plea, the prosecutor consented to the plea in writing by signing the plea and the plea expressly indicates that it is conditional.

This court has held that Rule 24.3 should be strictly construed in favor of a defendant, rather than liberally construed against him. See McCormick v. State, 74 Ark. App. 349, 48 S.W.3d 549 (2001). This rule requires a defendant to reserve his right to appeal in writing, but it does not explicitly require a judge's signature. Nor does the rule specify the manner in which the State is to manifest its consent to the conditional plea. See id. Therefore,strictly construing this rule in the defendant's favor, we view this case as distinguishable from Simmons, and we decline to dismiss the appeal for lack of jurisdiction.

II. Standing

The next issue is whether appellant has standing to challenge the search. The State contends, as it did below, that as a passenger and non-owner, appellant has no standing to challenge the search. See Ramage v. State, supra; Stanley v. State, supra. We disagree.

The law governing a defendant's standing to challenge a vehicular search was well-articulated by this court in Ramage v. State, supra:

Fourth Amendment rights against unreasonable searches and seizures are personal in nature. Thus, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. The pertinent inquiry regarding standing to challenge a search is whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. It is well settled that the defendant, as the proponent of a motion to suppress, bears the burden of establishing that his Fourth Amendment rights have been violated. A person's Fourth Amendment rights are not violated by the introduction of damaging evidence secured by the search of a third person's premises or property. A defendant has no standing to question the search of a vehicle unless he can show that he owns the vehicle or that he gained possession of it from the owner or someone else who had authority to grant possession. One is not entitled to automatic standing simply because he is present in the area or on the premises searched or because an element of the offense with which he is charged is possession of the thing discovered in the search. This court will not reach the constitutionality of a search where the defendant has failed to show that he had a reasonable expectation of privacy in the object of the search.

61 Ark. App. at 176-77, 966 S.W.2d at 268-69 (citations omitted).

Thus, in order for an occupant to challenge the validity of the search of a vehicle belonging to another person, he must show that he gained permission to use the vehicle from the owner or by someone else who had authority to grant permission. See id. In Ramage v.State, supra, the defendant was the driver of the car that was stopped. He was unable to produce a driver's license, registration for the car, or proof of insurance. The Ramage court affirmed the denial of the defendant's motion to suppress, holding that the record contained no evidence upon which to base a finding that the defendant had a legitimate expectation of privacy in the vehicle and noting that the defendant did not testify at the suppression hearing and was unable to produce any documentary evidence establishing lawful ownership or possession of the car. Further, the defendant in that case never asserted ownership or a right to possess the objects of the search. See also Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993), and State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992) (affirming the denial of defendant's motion to suppress where the defendant failed to show lawful possession of the vehicle that was searched).

In Stanley v. State, supra, the defendant was a passenger in a vehicle owned by his mother and driven by his brother. The Stanley court affirmed the denial of the defendant's motion to suppress, holding that the defendant had no standing to object to the search because he had no property or possessory interest in the vehicle, and therefore, had no legitimate expectation of privacy.

The State argues that appellant failed to establish that he had a property or possessory interest in the vehicle. The only documentation Mrs. Dunsworth was able to produce was the title to the truck, which indicated that their son was the owner. She initially told Ridenhour that she was test-driving the truck, but later testified that the vehicle belonged to their son and that she and appellant had permission to be in the truck. The State does notdispute Mrs. Dunsworth's testimony, but contends that her testimony only establishes that appellant had permission to be a passenger, which it maintains is insufficient to establish that he had a legitimate property or possessory interest in the vehicle. See Stanley v. State, supra.

The State's argument is hypertechnical. When asked if she had permission to operate the vehicle, Mrs. Dunsworth replied, "Yes." When asked immediately thereafter if appellant had permission to be in the vehicle, she likewise replied, "Yes." We do not assume, based on her undisputed testimony, that she was testifying that appellant only had permission to be a passenger in the car. Even if the trial court disbelieved Mrs. Dunsworth's testimony establishing that she and appellant had lawful possession of the property, here, there is an additional factor that was not present in Ramage, Stanley, Barter or Littlepage: appellant admitted that he took possession of the cigarette pack that contained methamphetamine and marijuana. Thus, unlike the defendant in Stanley, appellant asserted ownership of some of the objects of the search. On these facts, we hold that appellant has standing to challenge the search of the vehicle.

III. Motion to Suppress

The final issue is whether the trial court erred in denying appellant's motion to suppress. Appellant argues that the police lacked probable cause to search the truck. In reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances. See Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998); Hale v. State, 61 Ark. App. 105, 968 S.W.2d 627 (1998). Where the trial court denied a defendant's motion to suppress, we will reverse only if, in viewing theevidence in the light most favorable to the State as the nonmoving party, the trial court's ruling is clearly against the preponderance of the evidence. See Travis v. State, supra; Hale v. State, supra.

Appellant argues that the search in this case was not proper under Arkansas Rule of Criminal Procedure 12.1. This rule provides:

An officer who is making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused for the following purposes only:

(a) to protect the officer, the accused, or others;

(b) to prevent the escape of the accused;

(c) to furnish appropriate custodial care if the accused is jailed; or

(d) to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense.

Appellant asserts the facts do not support that the officer needed to search for weapons under Rule 12.1, because Mrs. Dunsworth was free to leave after the officer issued her citations and because appellant was handcuffed in the back seat of a police car. The State counters that the search was proper as a search incident to appellant's arrest under Rule 12.1(d). We agree with the State.

Pursuant to Rule 12.1(d), and incident to a lawful arrest of the occupants of a vehicle, an officer may contemporaneously search the passenger compartment and any containers found within the passenger compartment of the vehicle. See New York v. Belton, 453 U.S. 454 (1981); Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996). Further, under Rule 12.1(d), an officer may search for evidence of any crime, not just the crime for which an accused is being arrested. See Pyles v. State, 55 Ark. App. 201, 935 S.W.2d 570 (1996). Moreover, once a lawful arrest has been made, a search incidental to arrest may be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. See Pyles v. State, supra (citing United States v. Chadwick, 433 U.S. 1 (1977)).

Pursuant to these authorities, we hold that the search in this case was proper. Here, the discovery of appellant's outstanding warrant, the issuance of the tickets, appellant's arrest, and the search of the vehicle were contemporaneous, although not simultaneous. Once the officers arrested appellant, they were authorized to conduct a search of his person as well as the interior compartment of the vehicle and to seize evidence of any crime. Because we hold that the search was proper pursuant to Rule 12.1, we do not reach appellant's arguments that the search was improper pursuant to Arkansas Rule of Criminal Procedure 12.4 or that the detention was improper pursuant to 3.1.2

Affirmed.

Stroud, C.J., agrees.

Jennings, J., concurs.

John E. Jennings, Judge, concurring. I concur in the result but would affirm on the issue of standing, which in my view appellant clearly lacks. Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999); Stanley v. State, 330 Ark. 642, 956 S.W.2d 170 (1997).

1 Appellant does not offer any argument with regard to the court's failure to suppress his statement to Officer Davis.

2 Appellant argued that the detention was improper because the dog sniff was a "fishing expedition" based on Officer Goodman's telephone call, rather than probable cause to believe that drugs were present. We note that our supreme court has held that a canine sniff of the exterior of an automobile that is legitimately within the custody of the police is so limited an intrusion of protected privacy interests as to not amount to a Fourth Amendment search; therefore, under those circumstances, an officer is not required to have reasonable cause to conduct a dog sniff. See Vega v. State, 56 Ark. App. 145, 939 S.W.2d 322 (1997). [This interesting reasoning allows the police to conduct a canine sniff to effect what some reasonably consider an evidentiary search absent a warrant or reasonable cause.] Thus, here, once appellant was arrested, the officer was in lawful custody of the vehicle and was justified in detaining the vehicle to conduct not only a dog sniff, but as noted above, a full search of appellant's person and the interior compartment of the vehicle. See Phillips v. State, supra.