Michael Montgomery v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

MICHAEL MONTGOMERY,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR02-664

MARCH 19, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. CR2001-1890,

HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED

Michael Montgomery was convicted in a non-jury trial of felony possession of marijuana, third offense. He was sentenced to three years' imprisonment in the Arkansas Department of Correction and six months' suspension of his driver's license. On appeal he contends that the trial court erred in declining to suppress evidence against him because law enforcement officers made an unreasonable warrantless nighttime entry onto private property. We hold that Montgomery lacks standing to raise this issue; therefore, the conviction is affirmed.

The State presented testimony by three officers of the Little Rock Police Department regarding an incident that occurred on March 30, 2001. Officer Gregory Smith testified that while on night patrol, he responded to a call that several people were involved in a narcoticstransaction behind a residence in the alley at 1406 Izard Street. Smith testified that he observed a car parked in the alley at the residence; that he observed Montgomery talking to the driver and leaning inside the vehicle; and that when Smith approached with his gun out, Montgomery looked at him, turned, and walked toward the residence.

Officer Timothy Pope testified that he, too, responded to the call to 1406 Izard. He stated that he got out of his vehicle, came through the yard between a privacy fence and cars parked in the driveway, and observed Montgomery standing with another man in the garaged area; Pope observed Montgomery drop Baggies to the ground after pulling them out of his pockets. Pope testified that he ordered the men back to the car, patted Montgomery down for weapons, retrieved the Baggies, and placed Montgomery under arrest. Pope testified that he gave the Baggies, which he said contained marijuana, to Detective Tina Moore. Detective Moore testified that she stored the evidence that Pope turned over to her, and that she turned it over to the crime lab. Moore identified the Baggies of marijuana and a blunt cigar that she said she had received from Pope, and the items were admitted into evidence without objection.

At the conclusion of the State's case, Montgomery moved that his case be dismissed on the basis that the arrest was warrantless, having been "made without a search warrant onto private premises." The motion was denied. The defense then presented its case. Tiffany Bowie and Reginald Dodson testified that they were in the backyard of 1406 Izard with Montgomery, who was getting his car fixed. Bowie said that she saw Officer Smith approach and draw his gun, and she saw Dodson throw marijuana into the alley. Dodsontestified thatthe marijuana that was found on the ground belonged to him; he explained that he had been smoking marijuana for some time to alleviate the daily pain of his disabled right arm.

Montgomery argues on appeal that the officers' actions became illegal at the moment of their warrantless nighttime entry onto private property, and that everything taking place after the entry was tainted. For reversal, he relies primarily upon Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002), where the supreme court reversed the trial court's denial of a motion to suppress evidence obtained by means of an illegal search and seizure. Police officers in that case had received an anonymous tip during daylight hours that Griffin was selling drugs from his office or home, which was located on the same property. The officers waited until nighttime to go to the premises; they parked their police cars out of sight; they inspected an unlocked, parked vehicle but found no contraband; and they walked around the premises before talking with Griffin at his door. The supreme court ruled that an illegal search prohibited by under Article 2, Section 15, of the Arkansas Constitution had begun before Griffin was summoned to his door and was asked for consent to search.

Montgomery's argument under Griffin v. State, id., lacks merit because he did not demonstrate standing to challenge the officers' entry onto the private property where he was arrested. In Griffin, the illegal entry was onto Griffin's own property. An appellant must have standing to challenge a search on Fourth Amendment grounds because the rights secured by the Fourth Amendment are personal in nature; that is, he must have a legitimate expectation of privacy in the area to be searched. See Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999). Because Montgomery did not own the property where he was arrestedand did not otherwise demonstrate a legitimate expectation of privacy there, he has no standing to challenge the officers' entry onto the private property.

Affirmed.

Hart and Crabtree, JJ., agree.