Keir Thristian Frazee v. State of Arkansas

Annotate this Case
ar03-580

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

KEIR THRISTIAN FRAZEE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-580

OCTOBER 6, 2004

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR2002-01(B)-G]

HONORABLE NORMAN WILKINSON, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Keir Thristian Frazee, entered a conditional plea of guilty on the charge of conspiracy to possess drug paraphernalia with the intent to manufacture methamphetamine, reserving the right to appeal the trial court's denial of his suppression motion pursuant to Ark. R. Crim. P. 24.3(b) (2004). He was sentenced to two years' imprisonment with suspended imposition of sentence of eight years, conditioned upon the outcome of this appeal. On appeal, appellant argues that the trial court erred in denying his motion to suppress for exceeding the scope of the search warrant. We affirm.

On December 19, 2001, a search warrant was executed on appellant's home. The search warrant indicated that the search was for illegal weapons. The items specified in the warrant were as follows: an SKS-type fully automatic rifle; two shotguns, unknown gauge, with barrel length shorter than 18 inches; fully automatic firearms or other firearms in violation of federal law and other items pertaining to the possession of same including photographs; spare parts for firearms; tools used to modify firearms; and records that establish the persons who have control, possession, custody or dominion over the property and vehicles searched and from evidence which is seized, such as personal mail, checkbooks, personal identification, notes, other correspondence, utility bills, keys, photographs and fingerprints.

During the execution of the search warrant, officers found numerous items related to the manufacture of methamphetamine in addition to two questionable firearms. At the suppression hearing, officers testified as to the details of the search. Jeff Pearce, a senior special agent with the Federal Bureau of Alcohol, Tobacco, and Firearms, testified that he was the affiant on the search warrant of appellant's home. The search revealed a short barrel shotgun as well as a semiautomatic Beretta pistol with an unreadable serial number. Records establishing that appellant was in control of the property being searched were also found. Agent Pearce also testified that in a closed kitchen cabinet officers found a gallon can labeled muriatic acid, an empty can of acetone, and coffee filters. In an open cabinet, officers could see a glass beaker with residue on it. On a stand by the doorway of the kitchen, a black pipe and a glass pipe, both with residue, were found. Also in the kitchen, the officers found a Coleman torch. Another officer found two filters with a white powder substance on them and one coffee filter with a red residue. A large Coleman cook-stove was also discovered in the kitchen. At the conclusion of his direct examination, Officer Minor testified that, based on his experience as a narcotics officer, all of the items found, coupled together, are used in the manufacture of methamphetamine.

The officers further testified that during the execution of the search warrant a vehicle arrived in which appellant was a passenger. Kevin Barr, the driver of the vehicle, was arrested on an outstanding warrant. The officers searched the vehicle, discovering the following items: an empty thirty-two ounce can of acetone, an eighteen-ounce bottle of Red Devil lye, a one-gallon can of acetone, six boxes of twenty-four count nasal decongestant tablets, and one-gallon of Coleman fuel.

At the conclusion of the suppression hearing, the trial court found that the officers did not exceed the scope of the search warrant and denied appellant's motion to suppress the items seized that were unrelated to the subject matter of the warrant. The trial court then accepted appellant's conditional plea of guilty and sentenced him to two years' imprisonment with eight years suspended imposition of sentence.

Our standard is that we conduct 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. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003) (citing Ornelas v. United States, 517 U.S. 690 (1996)).

Appellant argues that the items found were outside the scope of the warrant because they were items unrelated to illegal weapons, and pursuant to the plain view doctrine, the discovery of these items was not inadvertent nor was there any immediate apparent incriminating nature to the items. The plain view doctrine is set out in Arkansas Rule of Criminal Procedure 13.3 (2004), which states that:

The scope of search shall be only such as is authorized by the warrant and is reasonably necessary to discover the persons or things specified therein. Upon discovery of the persons or things so specified, the officer shall take possession or custody of them and search no further under authority of the warrant. If in the course of such search, the officer discovers things not specified in the warrant which he reasonably believes to be subject to seizure, he may also take possession of the things so discovered.

Appellant argues that pursuant to Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977), and Terry v. State, 271 Ark. 715, 610 S.W.2d 272 (Ark. App. 1981), the items seized that were unrelated to the subject of the search warrant failed to meet the second and third prongs of the plain view test. However, our supreme court in Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998), eliminated the second prong of the plain-view test that required that the discovery of the items be inadvertent. In Fultz, the court stated:

Assuming that the police do not violate the Fourth Amendment in arriving at the place where the object can be plainly viewed, to justify a warrantless seizure, first, the object must be in plain view and its incriminating character must be "immediately apparent." Second, the officer must be lawfully located in a place to plainly view the object and must have a lawful right of access to the object. See Horton [v. California], 496 U.S. [128], 136-37 [1990]. In short, inadvertent discovery is not a requirement of a warrantless seizure of evidence in plain view, and Article 2, section 15, of the Arkansas Constitution, is not violated merely because the discovery was not inadvertent.

Fultz, 333 Ark. at 594, 972 S.W.2d at 225.

Appellant's remaining argument is that there is no evidence that the items seized would be immediately known as contraband. It is a felony violation of Arkansas Code Annotated § 5-64-401 (a)(l)(i) (Supp.2003) to possess, manufacture or attempt to manufacture methamphetamine. The statute does not require that methamphetamine actually be produced from the manufacturing process to sustain a conviction because a felony violation of the statute includes attempted manufacture of methamphetamine. Harris v. State, 73 Ark. App. 185, 187, 44 S.W.3d 347, 349 (2001). A person commits the offense of possession of drug paraphernalia with intent to manufacture methamphetamine if he uses, or possesses with intent to use, drug paraphernalia to manufacture methamphetamine. Ark. Code Ann. § 5-64-403(c)(5) (Supp. 2001). The term "drug paraphernalia" specifically includes items such as scales and balances, cutting agents, bowls, containers, and mixing devices. See Ark. Code Ann. §§ 5-64-101(v)(5), (6) & (8) (Repl. 1997). These items have ordinary and legal usages, and the fact-finder must determine whether the object is drug paraphernalia considering all logically relevant factors and evidence such as the following: (1) statements by an owner or by anyone in control of the object concerning its use; (2) prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance; (3) the proximity of the object, in time and space, to a direct violation of the controlled substances act; (4) the proximity of the object to controlled substances; (5) the existence of any residue of controlled substances on the object; (6) direct or circumstantial evidence of the intent of the owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to manufacture a controlled substance; (7) instructions, oral or written, provided with the object concerning its use; (8) expert testimony concerning its use. Ark. Code Ann. § 5-64-101(v) (Repl. 1997). The trial court found in this case that because the warrant authorized the officers to search for small spare parts of guns, and pursuant to the plain-view exception to the warrant requirement, the officers were authorized to look in places such as the kitchen cabinets and in a purse where such items might be found. Here, the officers were acting pursuant to the search warrant when searching the home and finding two weapons along with other items commonly used in the manufacturing of methamphetamine. The items used to manufacture methamphetamine were found in areas where the officers were to search. Testimony showed that there was visible residue on several of the items seized. Thus, the items were properly seized pursuant to the plain-view exception, and the officers did not exceed the scope of the warrant. Accordingly, we affirm.

Affirmed.

Robbins and Griffen, JJ., agree.