ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE DIVISION III

GREGORY LEE STEVENS AND GAIL RUTH RUSSELL A/K/A SWENSON,

APPELLANTS

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-1319

MAY 30, 2001

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT,

NO. CR99-307-A & CR99-307-B,

HON. FLOYD G. ROGERS, JUDGE

AFFIRMED

Appellants Gregory Lee Stevens and Gail Ruth Russell were charged with possession of methamphetamine with intent to deliver, possession of drug paraphernalia, simultaneous possession of drugs and firearms, and felon in possession of a firearm. They entered a conditional plea of guilty after the court denied their motion to suppress, in which they contended that the affidavit, relied upon to issue a search warrant for a motel room at the Alma Inn, in which they were staying, did not set out sufficient information to establish probable cause.

At the appellants' hearing on the motion to suppress, Brett Hartley, an investigator for the Crawford County Sheriff's Office, testified that on August 18, 1999, when he was on surveillance concerning suspected marijuana activity at the Alma Inn, he observed three people in a blue Chevrolet pickup who began removing things from the rear of the truck, including ice chests. He noticed that the individuals were acting suspiciously in that they

removed the ice chests and walked very carefully with them toward the motel room. He stated that they used so much caution that he felt there could be anhydrous ammonia in the ice chests, which is a common chemical used in the production of methamphetamine. He stated that at one point, one of the individuals left the motel room, observed everything going on around him, and then went back into the motel room.

Hartley testified that on August 19, he knocked on the door of room 226, where the individuals had taken the ice chests. After some time elapsed, an individual answered. Hartley stated that he shook the individual's hand, and noticed that it was extremely red. Hartley stated that the redness was something that he associated with the use of red phosphorous in the making of methamphetamine. Hartley stated that he asked the individual if he and some other officers could come in the room and look around, and that the individual said no.

While Hartley was trying to obtain the search warrant, he learned that Nearo, a canine of the Arkansas Highway Police, had alerted to room 226. The dog had also alerted to two cars at the motel and Hartley had been informed by the motel clerk that the individuals driving those cars had gone into room 226.

Hartley stated that he filed an affidavit and that he obtained a search warrant based upon the affidavit setting forth facts that the individuals in room 226 had engaged in suspicious activity in the parking lot, that they had rented a motel room in Alma although their car was registered out of Fort Smith, which is not far from Alma, and that they had handled the ice chests cautiously. Hartley's affidavit also included the facts that theindividual answering the door had red hand and that the canine had alerted at the room.

Based upon Hartley's affidavit, a search warrant was issued, and appellants were subsequently charged. At the conclusion of the hearing, the court denied appellants' motion to suppress. They entered conditional pleas pursuant to Ark. R. Crim. P. 24.3(b), and the court sentenced Russell to fifteen years in the Arkansas Department of Correction and Stevens to thirty years to be served in the Arkansas Department of Correction.

Russell and Stevens argue that the court erred in denying their motion to suppress evidence because the affidavit upon which the search warrant was based failed to establish probable cause for a search. The State contends that appellants failed to meet their burden of proving that they had standing to challenge the search.

We must first address whether the appellants had standing to challenge the search of the motel room. The State contends that they had the burden of establishing that appellants manifested a subjective expectation of privacy in the motel room by establishing that the motel room was established in their names. The State argues that the appellants' mere presence in the motel room does not confer upon them a reasonable expectation of privacy.

Rights secured by the Fourth Amendment are personal in nature and may not be vicariously asserted. Richard v. State, 64 Ark. App. 177, 983 S.W.2d 438 (1998) (citing Rakas v. Illinios, 439 U.S. 128 (1978)). 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. Richard v. State, supra. Thus, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. Richard v. State, supra. Thepertinent inquiry regarding standing to challenge a search is whether a defendant manifested subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Richard v. State, supra. This court has held that it does not matter that a motel room is not a permanent residence and that one registered at a motel as a guest is protected against unreasonable searches and seizures by the Fourth Amendment. Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982).

It is well settled that the 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, 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. Richard v. State, supra. This court will not reach the constitutionality of the search where the defendants have failed to show that they had a reasonable expectation of privacy in the object of the search. Richard v. State, supra. Where the State did not raise standing at the suppression hearing, but does so on appeal, this court can affirm its decision for a reason that was neither argued nor relied upon below. Richard v. State, supra. See Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998).

In the case at bar, there was testimony that appellants had rented the motel room. Hartley testified that he was suspicious because "they were staying in a motel" in Alma when the registration from their car was from Fort Smith. Later in his testimony, Hartley stated that he obtained the search warrant based upon suspicions about their activity and"about them renting a motel room." There was no evidence to contradict Hartley's testimony that appellants rented the motel room. We think this evidence is sufficient to find that the appellants had standing to challenge the search; therefore, we reach the merits of the case, and we affirm. See also Fouse v. State, 73 Ark. App. 134, S.W.3d (2001).

When reviewing a trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999). In making this determination, we view the evidence in the light most favorable to the appellee. Id.

Appellants argue that the affidavit was based upon three bases, none of which support the finding of probable cause to issue a warrant. They argue that the officer's conclusion that there were materials in the ice chest that could be used to set up a methamphetamine laboratory is problematic in that the officer could neither see nor did he have any idea what was contained in the ice chest. They also argue that the red hand of the individual answering the door does not establish probable cause in that the person's hand could have been scalded, rather than having become red from mixing phosphorous. And finally, they argue that the possible presence of controlled substances detected by a drug dog on the vehicle and on the motel room door does not provide any basis to believe that chemicals and components for a methamphetamine lab were contained in the motel room.

Rule 13.1 of the Arkansas Rules of Criminal Procedure states, in part, that an affidavit used in obtaining a search warrant is sufficient if it describes circumstances establishingreasonable cause to believe that things subject to seizure will be found in a particular place.

Under the totality of the circumstances analysis,

[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for ... conclud[ing] that probable cause existed.

State v. Mosley, 313 Ark. 616, 619, 856 S.W.2d 623, 624 (1993).

Hartley's affidavit included the statement that the appellants were acting suspicious in carrying ice chests into room 226 and that he thought that they might be carrying things that would be used in the manufacture of methamphetamine. In addition, when he knocked on the door to the room, the individual answering the door had red hands, which, Hartley stated in his affidavit, he believed to be consistent with the handling of chemicals used in the production of methamphetamine. Also, the affidavit stated that Nearo, the dog, had alerted to room 226 and to the vehicles of persons who were observed going into room 226. In addition, the car from which the persons retrieved the ice chests was registered out of Fort Smith, which is not far from Alma. These facts to which Hartley testified and which were included in his affidavit established probable cause to issue the search warrant.

Affirmed.

Neal, J., agrees.

Pittman, J., concurs.