Wigley v. State , 73 Ark. App. 399 ( 2001 )

TERRY CRABTREE, Judge.

Law-enforcement officials seized drugs and related materials after they made a warrantless entry into the home of a parolee, Lori Friddle, where the appellant, William Wigley, was an overnight guest. After a trial, a jury sitting in the Sebastian County Circuit Court found appellant guilty of manufacturing methamphetamine and sentenced him to twenty-three years in the Arkansas Department of Correction. On appeal, appellant maintains that the trial court erred in denying his motion to suppress part of the evidence seized from Friddle’s residence. We affirm.

Friddle executed a consent-in-advance form as a condition of gaining parole. Friddle’s parole officer testified that this condition of release stated that “you must admit your person, place or residence and motor vehicle to search and seizure at any time, day or night, with or without a search warrant, whenever requested to do so by any Department of Community Punishment Officer.” Following Friddle’s execution of this condition, the local drug task force began to investigate possible illegal drug activities occurring in her residence. The county criminal investigator understood, based on information gained from an informant who had been in Friddle’s residence, that illegal activities were occurring in the house. On March 4, 1999, at approximately 5:00 a.m. the investigator contacted Friddle’s parole officer and stated that methamphetamine was being cooked in the house. Approximately an hour later, a warrant-less search of the house was conducted based on the “consent in advance” form signed by Friddle.

Four detectives and two patrolmen accompanied the parole officer to Friddle’s residence to conduct the search. The search resulted in the seizure of a bag of white powder from a cigarette case with “Lori” on it, a hypodermic needle, and two used syringes. However, this appeal focuses on the search of a cardboard box and the seizure of its contents. In a den near the back-door entrance of the house, the officers found a cardboard box that was partially concealed with clothing and a trash bag lying on the top of the box. Inside the box, officers discovered one empty can of Toluene, one empty can of acetone, a plastic Dr. Pepper bottle with a reddish liquid, two jars with a chemical substance, tubing, and a Pyrex glassware with some residue. Based on this seized material, appellant was charged with possession of methamphetamine with intent to deliver. Appellant moved to suppress, arguing that the contents of the box were searched and seized in violation of the Fourth and Fourteenth Amendments, and the trial court denied the motion.

A defendant, as the proponent of a motion to suppress, bears the burden of establishing that his Fourth Amendment rights have been violated. Richard v. State, 64 Ark. App. 177, 983 S.W.2d 438 (1998). When reviewing the trial court’s denial of a motion to suppress, the appellate courts make an independent determination based on the totality of the circumstances and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997).

Appellant brings this appeal contending that the State violated his Fourth and Fourteenth Amendment rights by searching and seizing items by virtue of a warrantless search. In response, the State argues that appellant lacks standing to challenge the search because the host’s consent-in-advance rendered appellant’s expectation of privacy unreasonable. It is well setded 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. Katz v. United States, 389 U.S. 347 (1967). We must decide whether appellant has standing to challenge the search in Friddle’s residence. Fourth Amendment rights against unreasonable searches and seizures are personal in nature. Rakas v. Illinois, 439 U.S. 128 (1978). Thus, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998). 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. Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). 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. Embry v. State, 70 Ark. App. 122, 15 S.W.3d 367 (2000). 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. Id.

We are cognizant of Minnesota v. Olson, 495 U.S. 91 (1990), wherein the Supreme Court held that an overnight guest has a legitimate expectation of privacy in a host’s home. However in Olson, the Court reasoned, “From the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside.” 495 U.S. at 99 (emphasis added). In this instance, Friddle, the host, expressly allowed law-enforcement officials to search her home and person at any time as a condition of her release.

In United States v. Matlock, 415 U.S. 164 (1974), the Court addressed third-party consents by commenting that “any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” 415 U.S. at 172, n.7 (emphasis added). Here, appellant assumed this risk. Indeed, Friddle could allow anyone inside her home, and Friddle had ample time to apprize appellant of this condition of her release.

We believe that an overnight guest has no reasonable expectation of privacy when the host consents to a search. Accordingly, we conclude that as an overnight guest in a parolee’s home, appellant did not have a reasonable expectation of privacy in the cardboard box located in a common area of the parolee’s residence. Thus, appellant lacks standing under the Fourth Amendment to contest the legality of the warrantless search based upon his host’s consent-in-advance.

Affirmed.

Stroud, C.J., and Jennings, Bird, and Vaught, JJ., agree. Hart, ]., dissents.