Morris Zane Allen v. State of Arkansas

ar03-475

 ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

MORRIS ZANE ALLEN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-475

November 5, 2003

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

CR2002-411

HON. JOHN HOMER WRIGHT, JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Morris Zane Allen was convicted by a jury of manufacturing methamphetamine and sentenced to twenty years' incarceration in the Arkansas Department of Correction. His sole argument on appeal is that the trial court erred in not suppressing the evidence discovered in the warrantless search of his residence. We affirm.

Appellant was married to Angela Allen, and according to testimony she had filed for divorce in August 2001. The couple had been separated since mid-October 2001. Mrs. Allen had since been living with her mother at 102 Sulphur Street, in Hot Springs, and appellant was living at 215 Poplar Street, also in Hot Springs.

Approximately a month and a half prior to the incidents related to the instant case, appellant and Mrs. Allen attempted to reconcile. There was testimony that she resided with appellant at the residence on Poplar Street in September when appellant first moved in, but had stayed there only "off and on" during the attempted reconciliation.

Mrs. Allen was at the residence on November 30, 2001, and was assaulted by appellant while staying there. She then returned to her mother's home and called the police to report the assault. Police officers were dispatched to the Sulphur Street residence and completed a report regarding the assault.

On December 6, 2001, appellant was arrested at his home and incarcerated for committing the above-referenced assault against Mrs. Allen. At the time of appellant's arrest, officers gained entry into his residence to execute a warrant by having Mrs. Allen, who accompanied officers to the residence, use appellant's spare key that had been kept in appellant's mailbox to open the door.

On December 7, 2001, while appellant remained incarcerated, Mrs. Allen called police to report a suspected methamphetamine lab that she found in appellant's residence. Detective Rick Norris from the 18th District Drug Task Force responded to Mrs. Allen's call and arranged to meet her at appellant's residence. Detective Norris testified that when he arrived, Mrs. Allen was seated on the front porch of the residence waiting for him, and that she had a key to the house.

Mrs. Allen informed Detective Norris that she had gone into appellant's residence to retrieve some articles and had noticed something behind the refrigerator that looked like part of a methamphetamine lab. Detective Norris then advised Mrs. Allen of her Miranda rights and obtained her signature on a "Consent to Search" form.

Relying on Mrs. Allen's consent, officers entered and searched appellant's residence. Detective Norris found what appeared to be a hydrogen chloride gas generator behind the refrigerator in the kitchen. He also discovered a box containing syringes and razor blades, and in the attic he located glassware, hotplates, and other items used to manufacture methamphetamine. Photographs were taken to be used as evidence at trial, and the lab was removed and destroyed by a hazardous materials team from the State Crime Lab.

Appellant was charged with manufacturing a controlled substance based upon the evidence found during the search. Prior to trial, appellant moved to suppress the various items related to a methamphetamine lab that were seized from his residence, stating that Mrs. Allen did not have the requisite authority to grant permission to the officers to search the residence because she did not live there and did not have free access to the house. Following a hearing on the motion, the trial court issued a letter opinion denying the motion and making certain findings of fact and conclusions of law crediting the evidence presented by the State. Specifically, the trial judge stated that the evidence showed that the knowledge possessed by Detective Norris justified his belief that Mrs. Allen had authority to consent to the search. An order denying appellant's motion to suppress was subsequently entered. Photographs of the evidence seized during the search were allowed into evidence at trial, and appellant was convicted by a jury of manufacturing methamphetamine and sentenced to twenty years' incarceration in the Arkansas Department of Correction.1

Our standard of review for a trial court's action granting or denying motions to suppress evidence obtained by a warrantless search requires that we 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)). We give considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts, and defer to the superior position of the trial court to pass upon the credibility of witnesses. Id. Any conflict in the testimony of different witnesses is for the trial court to resolve. See Grillot v. State, __ Ark. __, 107 S.W.3d 136 (2003).

A warrantless entry into a private residence is presumptively unreasonable under the basic principles of the Fourth Amendment. See Payton v. New York, 445 U.S. 573 (1980); Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). Further, the U.S. Supreme Court has noted that, "[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States, 533 U.S. 27, 31 (2001). The burden is on the State to prove that the warrantless search was reasonable. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997).

One exception justifying a warrantless search is consent that was obtained pursuant to Ark. R. Crim. P. 11.1 (2003). Appellant argues that under Rule 11.1, he clearly had authority to grant consent to search the residence as the person in possession of the property. He asserts, however, that he was not present at the time of the search, as he was incarcerated in the Garland County Detention Center. He was easily available to officers, but they made no effort to request his consent, relying instead upon the consent of Mrs. Allen. Upon his arrival at appellant's residence, Detective Norris found Mrs. Allen sitting on the front porch in possession of a key to the residence. According to Detective Norris's testimony at the suppression hearing, he could not remember whether he asked Mrs. Allen whether she lived at the Poplar Street residence, but that he knew that she had been present there the day before at the time appellant was arrested. Mrs. Allen testified that she advised Detective Norris at least twice that she did not live there, but that he told her not to worry about it and just sign the form.

The State points out that Mrs. Allen apparently reconciled with appellant between the time of his arrest on this matter and the suppression hearing. At the hearing, she contradicted Detective Norris's testimony regarding her contact with him. Appellant argues that the officer's belief that Mrs. Allen had the requisite authority to consent to search simply because Mrs. Allen was present the day before when he was arrested and had a key to the residence was not sufficient. Additionally, appellant discounts Detective Norris's testimony that he saw women's and children's clothing inside the residence, as this observation could have only been made once he was inside and could not be used as a factor in determining whether Mrs. Allen had authority to consent to the search.

Mrs. Allen testified that the couple was estranged in the fall of 2001, that she had filed for divorce in August, and that she and appellant were under a restraining order that forbade them from going near one another. She testified that she primarily had been living with her mother since the couple separated, staying at appellant's residence only "off and on" during their attempted reconciliation. She testified that she did not have a key to the house, did not have free run of the house, and was not authorized by appellant to make entry at will. She explained that in order to allow the officers into the residence, she retrieved appellant's spare key from the mailbox. Upon inquiry by the trial court, Mrs. Allen reiterated that she had retrieved the key from the mailbox and had it in her possession at the time Detective Norris arrived. However, she went on to explain that she repeatedly made a point to explain to Detective Norris that the house was not her residence but that he ignored the information.

The State argues that the warrantless search of appellant's residence was proper because it was with the proper consent from appellant's wife. The State claims that it does not matter that appellant did not personally consent to the search because the record supports the trial court's finding that Mrs. Allen had either actual or apparent authority to consent to a search of the residence. This court recently reiterated its position regarding third-party consent to search:

Third-person authority may be based upon the fact that the third person shares with the absent target of a search a common authority over, general access to, or mutual use of the place or object sought to be inspected under circumstances that make it reasonable to believe that the third person has the right to permit the inspection in his own right and that the absent target has assumed the risk that the third party may grant this permission to others.

Strickland v. State, 80 Ark. App. 268, 273, 94 S.W.3d 376, 380 (2002).

Appellant argues that the courts have refused to allow this common authority to be inferred and have stated that the burden of establishing such common authority rests upon the State. See Goodman v. State, 74 Ark. App, 1, 9-10, 45 S.W.3d 399, 404 (2001). He cites Illinois v. Rodriguez, 497 U.S. 177 (1990), and Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995) as illustrative of the two-part inquiry, (1) whether the third party had actual authority to consent to the search, and (2) if not, whether officers could have reasonably believed that she had such authority.

In the instant case, the evidence supports appellant's assertion that Mrs. Allen did not have actual authority. There was no evidence that Mrs. Allen's name appeared on the lease or rental agreement, nor that she had ever paid any part of the rent. Appellant also claims that the facts do not support a reasonable belief by the officers that she had such authority. Although Mrs. Allen had a key to the residence, it was not her own and had not been given to her by appellant. She removed it from his mailbox without his authorization. There was testimony from Mrs. Allen and her mother that they both informed Detective Norris that Mrs. Allen did not reside at appellant's house, but were ignored by him. Mrs. Allen explained that when she contacted police regarding the previous domestic violence incident, all interaction between Mrs. Allen and the police took place at her mother's residence. This was recorded by the reporting officers in their report. Appellant asserts that the only evidence indicating that Mrs. Allen resided at the Poplar Street residence was in the Bail Determination Form completed by Detective Norris after appellant's arrest in which appellant stated that he resided with his wife. However, Detective Norris testified that he did not complete that particular form until December 10, 2001, some three days after the challenged search occurred.

The determination before us is whether the facts available to the officer at the moment third party consent was given would warrant a person of reasonable caution in the belief that the consenting party had authority to grant the consent. See Goodman, supra. The record indicates that on December 7, 2001, Mrs. Allen called police to report a suspected methamphetamine lab that she found in appellant's residence. Detective Norris responded to Mrs. Allen's call and arranged to meet her at appellant's residence. At that time, Mrs. Allen possessed a key to the premises, she was still married to appellant, she had been sporadically residing at the residence in the months just prior to the incident, and just one day before she had opened the front door of the residence for officers to execute a warrant for appellant's arrest. The State argues that under those facts, a reasonable person would be warranted in the belief that Mrs. Allen had common authority over, general access to, or mutual use of appellant's residence under circumstances making it reasonable to believe that she had the right to permit the search and such that appellant assumed the risk that she might grant permission to search to others. See Strickland, supra.

Appellant counters, arguing that Detective Norris was well aware that the correct procedure would have been, ideally, to present an affidavit containing the information gained from Mrs. Allen that led her to believe that illegal activity was taking place in appellant's home to a magistrate, and allowing the magistrate to decide whether there was sufficient cause for a search warrant. Failing that, Detective Norris could have attempted to obtain consent to search the residence from appellant, who was easily accessible to officers during his incarceration.

Because the evidence before the trial court was contradictory, the trial court necessarily had to determine which testimony was more credible. That the trial court found the testimony of the State's witness more credible than appellant's wife affords appellant no relief on appeal. See Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001) (deferring to the trial court's determination of witness credibility).

Viewing the totality of the circumstances, we cannot say that the trial court erred in finding that Mrs. Allen had apparent authority to consent to the search. Accordingly, we cannot conclude that the trial judge clearly erred in finding the officer's search valid.

Affirmed.

Crabtree and Baker, JJ., agree.

1 Before reaching the merits of appellant's argument, we note that appellant failed to include the notice of appeal in the addendum. Accordingly, appellant is not in compliance with Rule 4-2(a)(8) (2003) of the Arkansas Supreme Court and Court of Appeals. We could order rebriefing pursuant to Rule 4- 2(b)(3) (2003); however, the judgment and commitment order was dated and filed on January 2, 2003, and the record contains a copy of appellant's notice of appeal, which was timely filed on January 31, 2003.