Michael Lainhart v. State of Arkansas

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ar04-459

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

 

DIVISION II

MICHAEL LAINHART

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-459

March 9, 2005

APPEAL FROM THE GARLAND

COUNTY CIRCUIT COURT

[CR-01-139-I]

HONORABLE JOHN H. WRIGHT,

CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellant, Michael Lainhart, entered a conditional plea of guilty pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure to the offense of possession of a controlled substance (marijuana) with intent to deliver, and he was sentenced to fifteen years in the Arkansas Department of Correction. On appeal, he contends that the trial court erred in denying two motions to suppress evidence found in what he contends were illegal searches of a residence at 117 Pullman in Hot Springs, Arkansas, and of his vehicle. We affirm.

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)).

Appellant first contends that the trial court erred in denying his motion to suppress the evidence, approximately sixty pounds of marijuana found pursuant to a search warrant in the residence at 117 Pullman in Hot Springs, Arkansas. The trial court denied this motion to suppress on the basis that appellant lacked standing to contest the search.

At the suppression hearing, appellant testified that 117 Pullman was his mother's house. He said that he had keys to her house; that he spent the night there occasionally; that he had personal items at the house and always kept toiletry items there; that he did not need permission to enter the house; and that he could stay there as long as he wanted. He also stated that he and his brothers had paid the household bills for 117 Pullman several times, but that he did not pay the bills all of the time. He indicated that he had spent the night at 117 Pullman during the last days of 2000 and the "first couple of days of 2001" because his mother was without electricity during that time due to an ice storm. On cross-examination, appellant stated that he actually lived at 604 7th Street.

Appellant now argues that the trial court's ruling that he lacked standing to object to the search was in error because he had an expectation of privacy in his mother's home that was protected under the Fourth Amendment of the United States Constitution, which protects against unreasonable searches and seizures. Specifically, he argues that because he was at times an overnight guest at his mother's house, he therefore had a reasonable expectation of privacy in her home. In support of his argument, he cites Minnesota v. Olsen, 495 U.S. 91 (1990), which held that one's status as an overnight guest is sufficient to show that the guest had an expectation of privacy in the host's home that society is prepared to recognize as reasonable.

Our own supreme court's holding in the case of Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994), is directly on point with the facts of the present case. In Marshall, the appellant's mother testified that appellant lived with his grandmother and only stayed with her, his mother, occasionally. In holding that appellant had no standing to object to a search of his mother's premises, the supreme court, distinguishing Minnesota v. Olsen, supra, noted that there had been no showing that the appellant had been an overnight guest in his mother's house at the time the search was conducted. See also Davasher v. State, 308 Ark. 154, 163, 823 S.W.2d 863, 868 (1992) (holding that the "mere fact" that appellant frequently stayed at his mother's home did not give him a reasonable expectation of privacy in the premises).

In the present case, Lainhart testified that he occasionally stayed at his mother's house, including during the ice storm during the last days of December 2000 and the first few days of January 2001. However, as in Marshall, supra, there was no indication that Lainhart was an overnight guest in his mother's house since the first few days of January 2001 and clearly not at the time the search was conducted on January 17, 2001; therefore, we find no error in the trial court's determination that appellant had no standing to contest the search of his mother's house.

Appellant also contends that the trial court erred in denying his motion to suppress the search of his vehicle.1 In denying this motion, the trial judge found "that said evidence was in plain view after a traffic stop justified under the provisions of § 16-81-201 et seq." Arkansas Code Annotated section 16-81-204(a) (1987), the language of which is also contained in Rule 3.1 of the Arkansas Rules of Criminal Procedure, provides:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person whom he reasonably suspects is committing, has committed, or is about to commit a felony, if the action is reasonably necessary to identify or determine the lawfulness of such person's conduct.

"Reasonable suspicion" is defined in Rule 2.1 of the Arkansas Rules of Criminal Procedure as "suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; . . . a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion." Arkansas Code Annotated section 16-81-203 (1987) sets forth the factors to be considered in determining if an officer has grounds to "reasonably suspect" that a person is committing, has committed, or is about to commit a felony. These factors are (1) the demeanor of the suspect; (2) the gait and manner of the suspect; (3) any knowledge the officer may have of the suspect's background or character; (4) whether the suspect is carrying anything, and what he is carrying; (5) the manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors; (6) the time of the day or night the suspect is observed; (7) any overheard conversation of the suspect; (8) the particular streets and areas involved; (9) any information received from third persons, whether they are known or unknown; (10) whether the suspect is consorting with others whose conduct is "reasonably suspect"; (11) the suspect's proximity to known criminal conduct; (12) incidence of crime in the immediate neighborhood; (13) the suspect's apparent effort to conceal an article; and (14)apparent effort of the suspect to avoid identification or confrontation by the police. Such an investigatory stop under Rule 3.1 "depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity." Johnson v. State, 333 Ark. 673, 679, 972 S.W.2d 935, 938 (1998).

In the present case, an affidavit for a search warrant for appellant's residence, for which Investigator Richard Norris of the Eighteenth East Drug Task Force was the affiant, was introduced into evidence at the suppression hearing. In that affidavit, Investigator Norris stated that he had conducted surveillance on appellant's house for approximately three weeks and had observed a large volume of short-term vehicle and foot traffic at the residence, which, from his knowledge and experience, was often associated with drug activity. Norris had also obtained information that appellant had received a shipment of what was suspected to be marijuana.

Additionally, during the surveillance of appellant's house, a vehicle with expired tags was observed going to and leaving the house; when the vehicle was stopped, the driver was identified as Donnie Long, a convicted felon currently out on parole. Long was in possession of a loaded handgun, and he told the investigators that he had purchased the weapon at appellant's house, during which time he saw several pounds of marijuana and other firearms at the residence. Norris also stated in his affidavit that he had knowledge that appellant was a convicted felon currently on parole, that a confidential informant told him that he observed approximately two pounds of marijuana in appellant's house on January 17, 2001, and that appellant was going to his "stash house" to retrieve more marijuana. Norris stated in his affidavit that investigators saw appellant leave his house at 604 7th Street in a Mercury Mountaineer. The affidavit further stated that investigators followed appellant to 117 Pullman, where they observed him leaving the residence carrying a bag. Norris's affidavit states that when appellant was stopped after leaving 117 Pullman, officers observed a grocery bag containing a set of digital scales and approximately two pounds of marijuana.

An affidavit for a search warrant for the 117 Pullman residence, for which Investigator Todd Sanders of the Eighteenth East Drug Task Force was the affiant, was also introduced into evidence at the suppression hearing. Sanders stated in the affidavit that on January 16, 2001, he received information that appellant had received a shipment of suspected marijuana. Sanders stated that on January 17, 2001, a confidential informant had observed approximately two pounds of marijuana at appellant's house on 7th Street and that appellant was going to his "stash house" for additional marijuana. Sanders's affidavit stated upon surveillance of appellant's house, investigators saw appellant leave the house in a maroon Mercury. The affidavit further stated that investigators followed appellant to 117 Pullman, where they observed appellant enter the residence, leave approximately one and one-half hours later carrying a "plastic grocery-type" bag, and drive away in the maroon Mercury. The affidavit further provides that when appellant was stopped after leaving 117 Pullman, officers observed a grocery bag in the vehicle that contained digital scales and approximately two pounds of marijuana. At the suppression hearing, Investigator Sanders testified that after appellant was stopped, Sanders approached the vehicle, could see the open bag in the floorboard, and could see what the bag contained.

At the suppression hearing, Cory DeArmon of the Eighteenth East Drug Task Force testified that on January 17, 2001, he was watching the Pullman Street residence, where he observed a white male, whom he later identified as appellant, leave the house carrying a blue sack and get into a red Mountaineer and drive off. When he radioed this information to Norris, Norris instructed him to stop the car. DeArmon testified that when he made the stop, appellant was acting "nervous and fidgety." DeArmon saw the blue bag lying in the floorboard behind the passenger's seat and could see plastic bags of marijuana inside the bag. He testified that he placed appellant under arrest after he observed the marijuana in the bag.

Appellant attempts to attack the credibility of the information used to stop his vehicle by pointing to the suppression-hearing testimony of the alleged confidential informant, Leon Fugate. In his testimony, Fugate said that he was being sarcastic when he told Investigator Norris that appellant had received fifty pounds of marijuana, and that he did not tell Norris that he had seen marijuana at appellant's residence. Fugate also testified that the statement in Norris's affidavit that stated that Fugate said appellant was going to his stash house to retrieve more marijuana was a "ball-face lie" [sic] and that he had no knowledge of any marijuana being at the Pullman Street residence. However, the trial judge was not required to believe Fugate's testimony and was free take the information contained in the affidavit as true.

Under the totality-of-the-circumstances standard of review, we hold that the trial judge correctly denied appellant's motion to suppress the evidence found in his vehicle because given the information obtained through police surveillance, Donnie Long, and the confidential informant, the officers had reasonable suspicion that appellant was committing a felony - possession of a controlled substance with intent to deliver.

Affirmed.

Hart and Neal, JJ., agree.

1 Although Rule 14.1 of the Arkansas Rules of Criminal Procedure specifically involves vehicular searches, the trial court did not make its ruling on that basis, and appellant makes no argument with regard to Rule 14.1. However, we note that Rule 3.1 also encompasses vehicular searches, and Rule 14.1(c) specifically provides that Rule 14.1 "shall not be construed to limit the authority of an officer under Rules 2 and 3 hereof."