Kenneth Trigleth v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

KENNETH TRIGLETH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-175

September 22, 2004

APPEAL FROM THE CHICOT

COUNTY CIRCUIT COURT

[CR2001-57-2]

HONORABLE SAMUEL B. POPE,

CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Appellant, Kenneth Trigleth, was convicted by a Chicot County jury of possession of drug paraphernalia with intent to manufacture methamphetamine and possession of a controlled substance. He was sentenced to serve five years in the Arkansas Department of Correction for the offense of possession of drug paraphernalia with intent to manufacture methamphetamine, and he was given a five-year suspended imposition of sentence for the offense of possession of a controlled substance. Appellant's attorney initially filed an Anders brief and a motion to be relieved as counsel, arguing that there were no nonfrivolous issues that would arguably support an appeal; this court remanded the case for rebriefing. Trigleth v. State, CACR 02-175 ( Jan. 21, 2004). Upon rebriefing, appellant now argues that the trial court erred in denying his motion to suppress evidence found in his truck. We affirm.

At the suppression hearing, Chicot County Sheriff Deputy Bo Gilbert testified that on January 12, 2001, he received a radio call from the sheriff's office in Washington County, Mississippi, regarding a vehicle being driven by Charley Neblett. A deputy told Gilbert that

Neblett had been in an altercation with a female and had thrown her from his vehicle. The female then contacted the Washington County Sheriff's Office and told them that Neblett was under the influence of crystal methamphetamine, that he had some of the drug on his person, and that he was on his way home to dispose of a batch of methamphetamine that had just been "cooked off" because she had told him that she was going to call the sheriff's office.

As a result of this information, Gilbert stopped Neblett and received permission from Neblett to search his vehicle. As a result of that search, Gilbert found enough evidence to contact Judge Don Glover by telephone for a search warrant for Neblett's residence. Gilbert included the statement that had been faxed from the Washington County, Mississippi, Sheriff's Office, as well as the evidence found in Neblett's vehicle, as a basis for the search warrant. According to Gilbert, Judge Glover gave telephone authorization for the search warrant at 12:40 p.m. on January 12, 2001, and Gilbert then drove immediately to Neblett's residence at 365 Calvin Davis Road to execute the search warrant. When voir dired by appellant's counsel, Gilbert stated that he thought that the telephonic authorization of the search warrant had been recorded, but that he did not have the tape.

Gilbert testified that when he arrived at the residence, appellant was on the premises, and appellant's truck was parked in the curtilage of the search-warrant area. Although Gilbert testified that he was not involved with appellant's vehicle, he did recall that appellant was standing by the truck when he arrived at the residence. Gilbert said that Deputy Jerry Ridgell was the first deputy on the premises, but that he had not begun the search until Gilbert arrived with the search warrant.

Deputy Jerry Ridgell testified that he was told to go and observe Neblett's residence, that he was just walking around making sure that the scene was secure when Gilbert arrived, and that he was not conducting a search at that time. Ridgell said that appellant was standing by his truck when Gilbert arrived with the search warrant, and that he had just been walking around and talking to appellant. Ridgell said that in the back of the truck, in plain view, he could see items that were used to make methamphetamine, including an altered container, ether, and salt. He said that due to his training and experience, he believed that the container was altered to contain anhydrous ammonia because it had a bluish-green tint on the fittings of the container. He said that when he saw the items, he did not attempt to look closer, but just waited until the Arkansas State Police got there.

On cross-examination, Ridgell testified that the ether he found was actually starter fluid, but that it was the same thing as ether. He acknowledged that starter fluid was also used to start cars and farm machinery. Ridgell said that he saw appellant come out of the residence, walk to his truck, and start to open the door, but then he changed his mind for some reason. Appellant asked Ridgell what was going on, and Ridgell just told him that he would tell him shortly. Ridgell said that appellant was arrested after the state police arrived.

Arkansas State Police narcotics investigator Dennis Roberts testified that when he arrived at the residence, the search warrant had been served and the search had already been initiated. He said that a Deputy Brown advised him that there was an anhydrous-ammonia tank and other methamphetamine precursors in plain view in the back of appellant's truck. Investigator Roberts then approached appellant, who was leaning up against the truck, asked him whose truck it was, and appellant told him that it was his truck. At that time, Investigator Roberts told appellant that he was under arrest for possession of drug paraphernalia with the intent to manufacture methamphetamine. Roberts said that the evidence on which he made the arrest was the tank that he believed contained anhydrous ammonia because of the blue residue that was present on the brass fittings of the tank.

Appellant testified that Deputy Ridgell did not place him under arrest or tell him what was happening. He also said that no one showed him a search warrant when they searched his truck.

Appellant's counsel argued at the suppression hearing that the evidence found should be suppressed because there was no tape recording of the telephonic authorization of the search warrant and that the search warrant that brought the officers to the residence was therefore invalid. He also contended that even if the search warrant was valid, appellant's truck was not on the premises of the residence to be searched, which was a trailer, but rather on the premises of the house next door. He stated that the truck was in the driveway and that it was not in the curtilage of the residence to be searched. He further argued that ether, salt, and butane containers were not illegal, and that the State had not introduced the brass fittings of the container into evidence, and therefore it could not be determined if the fittings were blue.

The trial court found that the officers were at Neblett's residence investigating the complaint from Washington County, Mississippi, that the items found in the back of appellant's truck were in plain view, and that he had no expectation of privacy in the items that were in plain view in the back of his truck. Appellant now brings this appeal, arguing that the plain-view doctrine was not valid in this case, and that the trial court erred in denying his motion to suppress.

When reviewing a trial court's denial of a motion to suppress, the appellate court conducts "a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court." Saulsberry v. State, 81 Ark. App. 419, 423, 102 S.W.3d 907, 910 (2003) (citing Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003)). However, we hold that appellant lacks standing to object to the search warrant for Neblett's property because he did not have a legitimate expectation of privacy in the curtilage of property that he did not own. In Wigley v. State, 73 Ark. App. 399, 401-02, 44 S.W.3d 751, 753-54 (2001) (citations omitted), this court held:

It is well settled that capacity to claim the protection of the Fourth Amendment depends upon whether a person who claims the protection has a legitimate expectation of privacy in the invaded place. . . . 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. A person's Fourth Amendment rights are not violated by the introduction of damaging evidence secured by a search of a third person's premises or property. 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. The pertinent inquiry regarding standing to challenge a search is whether a defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable.

Appellant was present on Neblett's property when the officers arrived and executed the search warrant. However, he did not own the property or produce any evidence as to why he would have an expectation of privacy in the property; therefore he has no standing to challenge the search.

Furthermore, we hold that appellant could not show that he had a legitimate expectation of privacy in the items that were in plain view in the bed of his truck that was parked in the driveway. Although appellant's attorney stated during the suppression hearing that the truck was in the driveway of the house next door to Neblett's residence, there was no evidence presented indicating that was the case. However, there was testimony from officers that appellant's truck was parked in the curtilage of the area to be searched. In Walley v. State, 353 Ark. 586, 605-06, 112 S.W.3d 349, 360 (2003) (citations omitted), our supreme court held:

Driveways and walkways used to approach a residence are portions of the curtilage as traditionally defined, but under Katz v. United States, 389 U.S. 347, 351 (1967), the expectation of privacy in such areas is not generally considered reasonable. . . . "What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." Neither a driveway nor a yard are per se private, and, for Fourth Amendment purposes, areas outside the confines of one's home are ordinarily considered public.

In this case, in addition to the fact that the property searched was not owned by appellant, the fact that his truck was in a driveway, coupled with the fact that he knowingly exposed the items used to manufacture methamphetamine in plain view in the bed of his truck for all to see, indicates that appellant had no reasonable expectation of privacy in those items.

Affirmed.

Hart and Vaught, JJ., agree.