Kathy Ann Young v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

KATHY ANN YOUNG

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-934

SEPTEMBER 24, 2003

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[CR2001-543]

HONORABLE ROBERT EDWARDS, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Kathy Young, entered a conditional plea of guilty to possessing anhydrous ammonia in an unlawful container, possessing drug paraphernalia, and use of a communication facility and received a sentence of 74 months' imprisonment. She appeals the denial of her motion to suppress. We find no error and affirm.

The following evidence was adduced at the hearing on Ms. Young's motion to suppress. 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 to sleep. At approximately 3:00 a.m., White County Deputies Sablotny and Duke responded to the call and attempted to identify the source of the chemical odor as a potential health hazard. They parked their cars at the side of the highway and walked down Critter Lane to determine the source of the chemical odor. Critter Lane is a gravel road that serves as a common driveway to several mobile homes, and it is marked with a regular highway sign and controlled by a stop sign.

As the deputies walked down the lane, the odor became stronger and Deputy Sablotny, who had participated in thirty-two investigations of clandestine methamphetamine laboratories, recognized the odor as one associated with such labs. From Critter Lane, the officers saw a red pickup truck parked next to the porch of Ms. Young's trailer. A porch light was on, and the truck was visible from the road. The officers observed fumes coming from the bed of the truck. They approached the truck to determine if the vapor emitted from the bed of the truck was the source of the odor.

As they approached, the smell became stronger making it difficult to breathe. A man, later determined to be David Fulmer, came out of the trailer. Mr. Fulmer began moving items around in the bed of the truck, one of which was emitting vapor. As the deputies drew closer, Deputy Sablotny recognized the components of a methamphetamine lab and a gun. The officers took Mr. Fulmer into custody, and he told them that Ms. Young and a child were inside the trailer, which was also emitting noxious fumes. The officers went inside and removed Ms. Young and her son, who were both sleeping. Deputy Sablotny testifed that the fog and fumes inside the trailer were so pervasive that it was nearly impossible to see. Ms. Young consented to a search of the trailer, and signed a consent form. During the ensuing search, more contraband was found.

At the conclusion of the hearing, the trial court found 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 gave them authority to briefly detain him and ascertain the lawfulness of his conduct. Upon learning that other persons, including a child, were inside the trailer while it was emitting noxious fumes, and based upon their training and experience that fumes emitted during methamphetamine production are highly toxic, exigent circumstances justified the deputies' entry into the trailer to remove Ms. Young and the child. Finally, the trial court ruled 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 signing a form granting the deputies permission to search. Consequently, the evidence discovered as a result of that search was admissible.

The standard of review for a trial court's action granting or denying motions to suppress evidence obtained by a warrantless search requires that the Supreme Court make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). 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, 161 832 S.W.2d 271, 273 (1992). Law enforcement officers may, "without a search warrant, search open lands[.]" Ark. R. Crim. P. 14.2 (2003). The test for whether an area is an open landis 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 of 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." Standley v. State, 25 Ark. App. at 40, 751 S.W.2d at 366.

On appeal, Ms. Young asserts that the officers knew that they could not obtain a valid search warrant based upon the smell of ether or denatured alcohol, 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). She argues that despite this knowledge, they illegally invaded the curtilage of her home without a search warrant by approaching the truck that was backed up within a few feet of her porch; consequently, she contends that the "plain view doctrine" does not apply. Despite Ms. Young'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, ___ Ark. App. ___, 105 S.W.3d 365 (2003). 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 this own home or office, is not a subject of [constitutional] protection." Katz v. United States, 389 U.S. 347, 351 (1967).

From the time that the officers began investigating the report of noxious fumes until the time that they saw the vapors rising from the bed of Mr. Fulmer's truck, they had traveled on Critter Lane. The officers then crossed an open field or yard, bordering this common drive to investigate the fumes and the cloudy haze emitting from the truck. When they reached the truck, they observed not only items and smells associated with a methamphetamine lab, but a weapon. Under the plain view doctrine, an officer may seize an object without a warrant "if the police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object." Givens v. State, 76 Ark. App. 440, 442, 69 S.W.3d 50, 51 (2002).

In this case, a methamphetamine lab was in full operation, the items used in the manufacturing process were exposed to the public and easily viewed by anyone in the driveway, and noxious vapors emitted during production were affecting anyone within the extended area. The items were being used in the production of methamphetamine at the time the officers saw them laying open and exposed in the back of the truck, and the deputies observed a gun lying in plain view with the lab items. Therefore, the officers had probable cause to believe the items were contraband without conducting any further search of the truck or the items in the truck.

Ms. Young also argues that her consent to search her trailer was invalid because the premises had been illegally searched and the evidence illegally seized before consent was given. To the extent that her argument may be based upon the officers securing Mr. Fulmer and the lab found in the back of the truck, prior to obtaining Ms. Young's consent, the officers were justified in their actions regarding the lab in the back of the truck. Her consent, therefore, could not be invalidated as the fruit of the poisonous tree because "where the tree is not poisonous, neither is the fruit." Criddle v.State, 338 Ark. 744, 749, 1 S.W.3d 436, 439 (1999).

To the extent that she may be arguing that the officers conducted a search of her trailer when they entered to remove her and the child from the noxious fumes, nothing in the record indicates that the deputies did anything other than enter the trailer, awaken its occupants, and take them outside. The officers had already discovered the active methamphetamine lab in the drive. Their training and experience provided them with knowledge that these labs produce dangerous gases and the toxicity of the gases from this particular production had initiated a citizen's complaint regarding its effect on the reporter's breathing. These same fumes had only moments before made it difficult for the officers to breathe. Given the fact that the trailer itself was emitting these toxic vapors, the officers had reasonable cause to believe that Ms. Young and the child were in imminent danger of death or bodily harm from the fumes. "An officer who has reasonable cause to believe that premises . . . contain . . . individuals in imminent danger of death or serious bodily harm . . .may, without search warrant, enter and search such premises . . .to the extent reasonably necessary for the prevention of such death [or] bodily harm[.]" Ark R. Crim. P. 14.2(a)(2003). Therefore, the officers entry into the trailer to remove them was permissible.

While Ms. Young cites Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002) to suggest that the deputies' actions violated the Arkansas Constitution, the officers' actions taken to ensure her and her child's safety are simply not comparable to the violations that occurred in Griffin prior to the officer's attempting to gain consent.

Accordingly, we find no error and affirm.

Pittman and Gladwin, JJ., agree.