David Wayne Fulmer v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CACR02-932

OCTOBER 1, 2003

DAVID FULMER AN APPEAL FROM THE WHITE

APPELLANT COUNTY CIRCUIT COURT

v. [CR-2001-543]

STATE OF ARKANSAS HONORABLE ROBERT EDWARDS, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellant, David Fulmer, entered a conditional plea of guilty to manufacturing methamphetamine, simultaneous possession of drugs and a firearm, and possession of anhydrous ammonia in an unlawful container, reserving his right to appeal the adverse determination of his motion to suppress. He received a sentence of 264 months' imprisonment. On appeal, he contends that the warrantless search and seizure of his property was unreasonable because it did not fall under an exception to the warrant requirement. We find no error and affirm.

As established in the companion case of Young v. State, CACR02-934 (Ark. App. September 24, 2003), the facts are as follows: In the early morning hours of September 12, 2001, a citizen called the White County Sheriff's Office and reported that a strong chemical odor, originating somewhere near the intersection of Rocky Point Road and Critter Lane, was interfering with the citizen's ability to breathe and sleep. At approximately 3:00 a.m., White County Deputies Terry Sablotny and Bryan Duke responded to the call and attempted to identify the source of the chemical odors that were a potential health hazard. The deputies parked their patrol car at the side of the highway and walked down Critter Lane to investigate. Critter Lane is a gravel road that serves as a common driveway to several mobile homes.

As the deputies walked down the lane, the odor intensified the further they walked. Deputy Sablotny recognized the odor as being consistent with odors produced by a clandestine methamphetamine laboratory. From Critter Lane, the deputies saw a red pickup truck parked next to the porch of a trailer. A porch light was on, and the truck was visible from the road. A vapor emitted from the bed of the truck made it difficult for the deputies to breathe.

The deputies observed appellant come out of the trailer. They observed appellant come around to the rear of the truck, pick up several items, one of which was emitting some sort of fog-like vapor, and move them into the truck. As the deputies drew closer, Deputy Sablotny saw a gun and recognized the components of a methamphetamine lab. The deputies testified that all of these items were in plain view and located in the bed of the truck. Appellant was immediately taken into custody, and appellant informed the deputies that some people were inside the trailer. Once inside, the deputies removed a child and a woman, Kathy Young, who were found sleeping inside. Deputy Sablotny testified that the fog and fumes inside the trailer were so pervasive that it was nearly impossible to see. Young consented to a search of the trailer, manifesting consent by signing a form. During the search, more contraband was located.

At the conclusion of the suppression hearing, the trial court determined that the deputies were conducting a lawful investigation at the time they encountered Mr. Fulmer, that they crossed an open field to Ms. Young's trailer, and that they observed contraband and a weapon in plain view in the bed of Mr. Fulmer's truck that gave them authority to briefly detain him and ascertain the lawfulness of his conduct. The court further determined that based upon their training and experience with methamphetamine labs and upon learning from Mr. Fulmer that other persons were inside the trailer, the deputies were justified in entering the trailer as exigent circumstances existed. Finally, the court determined that Ms. Young freely and voluntarily gave her consent to search the trailer and that her consent was manifested by her statement that she had nothing to hide and her subsequent signature on a consent form.1

When reviewing the trial court's denial of a motion to suppress, this court makes an independent determination based on the totality of the circumstances. Lancaster v. State, ___ Ark. App. ___, 105 S.W.3d 365 (April 23, 2003). The appellate court will reverse a denial of a motion to suppress only if the trial court's ruling was clearly against the preponderance of the evidence. Id.

The appellate court defers to the trial court in assessing the witnesses' credibility. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001).

All searches conducted without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. Kirk v. State,38 Ark. App. 159, 832 S.W.2d 271 (1992). Law enforcement may "without a search warrant, search open lands[.]" Ark. R. Crim. P. 14.2 (2003). The test for whether an area is an open land is whether the defendant has a reasonable expectation of privacy in that area. See Standley v. State,25 Ark. App. 37, 751 S.W.2d 364 (1988). In considering whether a defendant has a reasonable expectation of privacy, this court considers "the proximity to the areas [at issue] to the home; whether the area is included within an enclosure surrounding the home; the nature of the uses to which the area is put; and the steps taken by the resident to protect the area from observation by people passing by." Id. at 40, 751 S.W.2d at 366.

Further, Arkansas Rule of Criminal Procedure 14.3 provides that "[a]n officer who has reasonable cause to believe that premises or a vehicle contain . . . individuals in imminent danger of death or serious bodily harm . . . or . . . things imminently likely to burn, explode, or otherwise cause death, serious bodily harm, or substantial destruction of property . . . may, without a search warrant, enter and search such premises and vehicles . . . to the extent reasonably necessary for the prevention of such death [or] bodily harm[.]" "An officer who, in the course of otherwise lawful activity, observes the nature and location of things which he reasonably believes to be subject to seizure, may seize such things." Ark. R. Crim. P. 14.4 (2003).

On appeal, appellant argues that the warrantless search and seizure of his property was unreasonable because it did not fall under an exception to the warrant requirement. He contends that the deputies knew that they could not obtain a valid search warrant based upon the trained officer's smell of ether or denatured alcohol, items commonly associated with the manufacturing of methamphetamine, because no precedent sanctions the issuance of a search warrant based solely on a trained officer's smell of a legal substance. See Bennett v. State, 345 Ark. 48, 44 S.W.3d 310 (2001). He argues that despite this knowledge, the deputies illegally invaded the curtilage of his home without a search warrant by approaching the truck that was backed up within a few feet of his porch; consequently, he contends that the "plain view doctrine" does not apply. Despite appellant's argument that the deputies' mere presence on the driveway constituted an illegal search, nothing in the law prohibited the deputies from approaching the truck as it stood on the driveway.

A person has no reasonable expectation of privacy in a driveway absent the erection of some physical barrier such as a gate or wall. Lancaster v. State, supra. This premise is based upon the understanding that "[i]f one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so." Burdyshaw v. State, 69 Ark. App. 243, 248, 10 S.W.3d 918, 921 (2000). Furthermore, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of [constitutional] protection." Katz v. United States, 389 U.S. 347, 351 (1967).

In this case, the deputies received a dispatched call, indicating that dangerous odors were in the air. They walked on open land and discovered appellant's property from which they personally witnessed vapors and smelled a strong odor. The deputies had reasonable cause to believe that the premises or contained items could place individuals in imminent danger of death or serious bodily harm if the seizure was delayed; therefore, the officers could validly enter and search the premises without a search warrant to the extent reasonably necessary for the prevention of such death or bodily harm. Furthermore, under Ark. R. Crim. P. 14.4, the officers could, in the course of their lawful entrance, observe the location of things which they reasonably believed to be subject to seizure, like the gun and the container emitting vapors, and seize them.

Affirmed.

Robbins and Griffen, JJ., agree.

1 The court did however suppress appellant's and Young's custodial statements.