ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CACR00-659

March 14, 2001

DANIEL LAVERN NELSON AN APPEAL FROM SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT,

GREENWOOD DISTRICT [CR97-363-2]

V. HON. J. MICHAEL FITZHUGH, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Daniel Nelson appeals from his convictions for possession of methamphetamine with intent to deliver and manufacturing methamphetamine. He argues that the trial court erred in failing to grant his motions to suppress the evidence seized in a nighttime search and an inculpatory statement he gave shortly following his arrest. We find no error and affirm.

On April 4, 1997, Chris Johnson of the Sebastian County Sheriff's Office applied for a search warrant to search a residence based on information obtained from an informant who executed a controlled purchase of methamphetamine. In the affidavit in support of the search warrant, Johnson stated that a confidential informant informed him that he had reason to believe drugs, drug paraphernalia, and "buy" money were located on the premises knownas the residence of Billy Tucker and Danny (last name stated as unknown in the affidavit). Johnson indicated that the informant had previously provided information regarding individuals involved in local drug trafficking, which he confirmed through intelligence and other sources. He also stated that the informant made statements against his penal interest involving illegal controlled substances.

The affidavit further indicated that on April 4, the same informant participated in a controlled purchase at the residence in question, using marked money and remaining under surveillance until entry and after departure. In addition, the informant was equipped with an electronic monitoring device that enabled the officers to overhear the transaction as it took place within the residence. The informant exited the residence with a substance that field tested positive as methamphetamine. He told the officers that he had seen, within the past thirty days, a quantity of additional methamphetamine, other drugs, and drug paraphernalia inside the residence and outbuildings.

Additionally, Johnson indicated in the affidavit that the items were small and easily capable of being destroyed or removed and stated his belief that the items were in danger of being sold, removed from the premises, or destroyed. He requested a nighttime search warrant. The warrant was executed shortly after midnight, in the early morning hours of April 5. Appellant was found asleep in a bed in a back bedroom and was arrested. The officers seized drugs, drug paraphernalia, chemicals, and other items commonly used to manufacture methamphetamine. No later than the next day, appellant admitted to Investigator William Hollenbeck that he used and possessed methamphetamine and alsomanufactured methamphetamine.

Appellant filed two separate motions to suppress the evidence seized during the search and the statement given to Hollenbeck on the grounds that there were no facts stated in the affidavit supporting a nighttime search; therefore, he argued that the search was illegal and the evidence and the statement obtained as a result of the search and illegal arrest should be suppressed.

The trial court denied appellant's motions, specifically finding that the issuing judge had reasonable cause to believe that the money and drugs were in danger of immediate removal or in danger of being destroyed. A jury found appellant guilty as charged, and sentenced him to serve concurrent sentences of ten years on the possession charge and fifteen years on the manufacturing charge.

I. Appellant's Standing to Assert Fourth Amendment Rights

The State argues for the first time on appeal that appellant has no standing to contest the search and seizure. Generally, we do not consider arguments raised for the first time on appeal. However, we have held that we may consider the issue of a defendant's standing to assert Fourth Amendment challenges to searches when the issue is raised by the State, see Richard v. State, 64 Ark. App. 177, 983 S.W.2d 438 (1998), unless we find the State has waived its right to raise the issue. See, e.g., Foust v. State, ___Ark. App. ___, ___ S.W.3d ___ (2000) (holding the State waived its right to raise the standing issue on appeal where the record below contained written and oral affirmations by the prosecution and the court sufficient to indicate that the defendant had standing).

The State argues that appellant presented no proof at the suppression hearing that he had a legitimate expectation of privacy in the residence belonging to Billy Tucker, and that on appeal, he does not assert that he had either a proprietary or possessory interest in the residence. The State further notes that appellant did not testify at the suppression hearing. See Richard v. State, supra (holding that the defendant failed to establish standing where he did not testify at the suppression hearing and there was no indication that he had a proprietary interest in the residence searched). See also Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998).

It is well-settled that a defendant has the burden of establishing that he has standing to challenge a search and seizure on Fourth Amendment grounds by showing that he has a reasonable expectation of privacy in the area searched. See Ramage v. State, supra; Richard v. State, supra. It is also well-settled that rights secured by the Fourth Amendment are personal in nature, and may not be vicariously asserted. See Rakas v. Illinois, 439 U.S. 128 (1978). Thus, 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. See id.; Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). Therefore, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. See Ramage v. State, supra; Rankin v. State, supra. 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. See Rankin v. State, supra. The pertinent inquiry regarding standing to challenge a search iswhether a defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. See Rankin v. State, supra. We will not reach the constitutionality of the search where the defendant has failed to show that he had a reasonable expectation of privacy in the object of the search. See Rankin v. State, supra; McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996).

Although we cited the fact that the defendants did not testify in Richard and Ramage, our holdings in those cases were not based merely on the defendants' failure to testify during the motion to suppress. In those cases, no evidence was presented by the defendants to show that they had standing and we found no evidence to support a claim of standing in the record. See Richard v. State, 64 Ark. App. at 180, 983 S.W.2d at 440; Ramage v. State, 61 Ark. App. at 177, 966 S.W.2d at 269.

By contrast, here there was evidence that appellant either lived at the residence or at least was an overnight guest. The affidavit requested a warrant to search the premises known as the residence of Billy Tucker and Danny (last name unknown). Further, Johnson testified that the informant provided the information pursuant to "a drug investigation of Danny Nelson and Billy Tucker." Johnson also testified that appellant was found in bed asleep in a back bedroom of the residence and gave that address as his residence after he was arrested. An accused's status as an overnight guest, alone, is sufficient to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable. See Minnesota v. Olson, 495 U.S. 91 (1990); Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). Therefore, we hold that the evidence in the record is sufficient to show thatappellant either lived at the residence or was an overnight guest; either status is sufficient to give him standing to challenge the search.

While we hold that the record demonstrates appellant's standing in this case, we are compelled to comment about the State's contention that appellant has no standing to contest the search and seizure. As noted previously, the State advances this argument for the first time on appeal. While our decisions in Richard v. State and Ramage v. State allow the State to argue lack of standing for the first time on appeal, neither of those decisions, nor any other authority, justifies the State's stance in this case. Appellant filed his first motion to suppress on April, 17, 1997. The hearing on the motion to suppress was not held until January 29, 1999, nearly two years later. At no time did the State respond to appellant's suppression motion, nor did the State challenge appellant's standing at the suppression hearing. The State's assertions on appeal that appellant did not testify below or present any evidence to show that he had a reasonable expectation of privacy in the residence ring especially hollow in light of the State's failure to respond to appellant's motions and in light of its failure to raise the standing issue below.

Moreover, the affidavit used to obtain the search warrant stated the search was to be conducted at the premises known as the residence of Billy Tucker and Danny (last name unknown), and especially in light of the fact that Johnson, the State's own witness, testified during the hearing on the motion to suppress that appellant was found asleep in the bedroom of the residence. Johnson also testified that appellant lived at the residence.

Johnson was the State's leading witness. His testimony was undisputed that the Statewas investigating reports of illegal drug trafficking at premises where appellant and Billy Tucker resided. Given these facts, the State's argument on appeal that appellant lacked standing to challenge the search is simply inexcusable.

II. Motion to Suppress the Evidence

Appellant argues that the trial court erred in not suppressing the evidence and his inculpatory statement because the requirements to issue a nighttime warrant were not present in this case. In reviewing a trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances. See Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998); Hale v. State, 61 Ark. App. 105, 968 S.W.2d 627 (1998); Holmes v. State, 39 Ark. App. 94, 839 S.W.2d 226 (1992). Where the trial court denied a defendant's motion to suppress, we will reverse only if, in viewing in the light most favorable to the State, the trial court's ruling is clearly against the preponderance of the evidence. See Travis v. State, supra; Hale v. State, supra; Holmes v. State, supra.

Rule 13.2(c) of the Arkansas Rules of Criminal Procedure, which governs the issuance of nighttime search warrants, provides in relevant part:

Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:

(i) the place to be searched is difficult of speedy access; or

(ii) the objects to be seized are in danger of imminent removal; or

(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;

the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.

In his affidavit, Johnson stated that the informant told the officers that he had seen a quantity of additional methamphetamine, other drugs, and drug paraphernalia inside the residence and outbuildings within the previous thirty days. Johnson also indicated his beliefs that the items were small and easily capable of being destroyed or removed and that the items were in danger of being sold, removed from the premises, or destroyed.

The existence of any one of the factors listed in Rule 13.2(c) may justify a nighttime search. See Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). However, an affidavit requesting a nighttime search must set out facts showing the officer's reasonable cause to believe that the circumstances exists that justify a nighttime search. See Thompson v. State, 42 Ark. App. 254, 856 S.W.2d 319 (1993).

The following authorities are instructive. In Meyers v. State, 46 Ark. App. 227, 878 S.W.2d 424 (1994), we affirmed the denial of appellant's motion to suppress where the affidavit set forth facts stating that the residence contained additional illegal drugs and paraphernalia, that the informant had purchased drugs with recorded currency and that appellant was believed to be active in the sale of illegal drugs. In Holmes v. State, 39 Ark. App. 94, 839 S.W.2d 226 (1992), we affirmed the denial of a motion to suppress where the affidavit, based on an informant's controlled buy, indicated the presence of cocaine and drug paraphernalia, the presence of records, documents, and money believed to be associated with the defendant's drug trade, and that the defendant was believed to be involved in the heavytrafficking of drugs.

The affidavit here contained facts to support the assertion that drugs, drug paraphernalia, and marked money would be found on the premises and that active drug activity was taking place within the premises. Thus, the affidavit in this case was similar to the affidavits in Holmes and Meyer, except that it contained no facts to support regular or heavy drug traffic. Nonetheless, the fact the affidavit did not contain such a statement is not fatal, because in Hale v. State, 61 Ark. App. 105, 968 S.W.2d 627 (1998), this court affirmed where the trial court ruled that the marked money in and of itself justified a nighttime search. It is undisputed that the informant in this case made a marked buy within a few hours prior to the search and the affidavit contained facts to support that additional drug activity was taking place on the premises. Based on the foregoing authorities, we hold that the trial court did not err in denying appellant's motion to suppress the evidence seized in the search.

III. Motion to Suppress Appellant's Statement

Shortly after his arrest, appellant admitted to the police that he had possessed methamphetamine and had also manufactured methamphetamine. He argues that because the search warrant was invalid, his subsequent arrest was invalid and therefore, his confession should be suppressed as fruit of the poisonous tree. Because we hold that the trial court did not err in denying appellant's motion to suppress the evidence obtained in the search, it follows that the trial court did not err in denying appellant's motion to suppress the statement obtained as a result of his subsequent arrest. It is well-settled that where the tree is not poisonous, neither is the fruit. See Langford v. State, 332 Ark. 54, 962 S.W.2d 358(1998).

Affirmed.

Crabtree and Baker, JJ., agree.