ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION I

SCOTT HOWE

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR 01-1350

NOVEMBER 28, 2001

APPEAL FROM CLAY COUNTY CIRCUIT COURT

[NO. CR2000-08]

HONORABLE JOHN FOGELMAN, CIRCUIT JUDGE

AFFIRMED

Scott Howe was convicted by a jury of possession of methamphetamine with intent to deliver, criminal attempt to manufacture methamphetamine, possession of drug paraphernalia with intent to manufacture methamphetamine, and possession of drug paraphernalia with intent to use. Howe was sentenced to forty-five years in the Arkansas Department of Correction and assessed a $25,000 fine. On appeal, Howe argues that the trial court erred in 1) denying his motion to suppress evidence seized during an impermissible and unconstitutional roadside search following an arrest for disorderly conduct in the absence of probable cause; 2) denying his motion to suppress evidence seized in a warrantless search at his farm site; 3) allowing a police officer to testify that a vacuum cleaner bag found contained methamphetamine residue when the bag had not been submitted for drug analysis; and 4) allowing hearsay testimony regarding the street value of methamphetamine to establish the requisite proof of possession of a controlled substance with intent to deliver. We affirm.

During the evening of October 12, 2000, Howe was operating a motorcycle on a county roadin Clay County. Deputy Jeff Midget testified that Howe was weaving and driving erratically and that he had no tags on the motorcycle. When Midgett turned on his blue lights, Howe turned onto a private field road and stopped. Midgett testified that he saw Howe throw a large blue item after he stopped the motorcycle. As Midgett approached the motorcycle, Howe turned around and zipped up his coat to the neck. Midgett testified that this was a "red flag" to him that Howe might be trying to hide something. Midgett asked Howe for his driver's license and asked what Howe had thrown into the field. Howe did not comply with the request for his driver's license and told Midgett that he did not know what he threw, and that he had picked the object up from the road. Midgett retrieved the object and found that it was a blue sack containing a plastic jug with the top cut out. Midgett testified that he had seen these types of jugs used in methamphetamine labs.

Midgett again asked Howe for his driver's license and Howe told him he did not have one for the motorcycle. Howe gave his name, stated that he owned the grain bins down the field road, and that he had seen some headlights down there and was going to check for intruders. When Midgett asked Howe for some type of identification, Howe attempted to look through his wallet while holding the motorcycle upright, because the motorcycle was not on level ground. Midgett testified that Howe seemed to be guarding or hiding something on the left side on his body. After three requests for Howe to move the motorcycle to level ground, Howe finally complied. Because of his concern that Howe might have a weapon, Midgett asked him to step off the motorcycle so that he could do a pat down search for weapons before he ran a check on him. Midgett testified that when he brought his hand to Howe's left pants pocket, he felt something like a plastic baggy with a substance in it, and Howe jerked away, pointed his finger at him, and said, "I've done f------ told you I don't have anything on me." Midgett then warned Howe that if he jerked away and cursed at him again, he would place him under arrest for disorderly conduct. Midgett had Howe put botharms out to the side, but when he attempted to pat down the area where he had felt the baggy, Howe again jerked away, pointed his finger closer to Midgett's face and said, in a raised voice, "I've done f------ told you who I am, I don't f------ have anything on me." Midgett then placed Howe under arrest for disorderly conduct.

Midgett did a full search of Howe before placing him in his vehicle to take him to the sheriff's office, and he found two vacuum cleaner bags, several shop towels, a Ziploc bag containing a white substance that was later determined to be methamphetamine, a syringe with methamphetamine residue, a wooden container with marijuana, several pieces of foil containing methamphetamine and residue, and plastic tubes with methamphetamine residue. Midgett testified that it was his routine practice to do a full search incident to arrest before placing a suspect in his vehicle, for his safety and for the arrestee's protection. An inventory search of Howe was also done at the sheriff's department.

Before Midgett left the scene, he contacted Deputy Sean Riegle and asked him to check out Howe's claim that he had seen someone by his grain bins, which were located in the middle of a field with no fences surrounding them. Around the grain bins in plain view, Riegle found a bucket filled with a substance that was later found to be a lithium salt mixture, a byproduct of methamphetamine production, lithium strips, vacuum cleaner bags with what appeared to be methamphetamine residue, and a can of charcoal starter fluid. Other items of drug paraphernalia were found inside an unlocked grain bin.

Howe filed a motion to suppress the evidence found on his person during the search incident to arrest and the evidence found in and around the grain bins. The trial court granted the motion with respect to the items found inside the grain bin, but denied the motion as to the other items, and Howe was convicted of all counts at the subsequent jury trial. This appeal ensued.

Howe first argues that the trial court erred in denying his motion to suppress evidence seized during an impermissible and unconstitutional roadside search. In reviewing a trial court's ruling on a motion to suppress, the appellate court reviews evidence in the light most favorable to the State, makes an independent determination based upon the totality of the circumstances, and reverses only if the ruling is against the preponderance of the evidence. Shaver v. State, 332 Ark. 13, 963 S.W.2d 598 (1998). The appellate court defers to the superior position of the trial court in evaluating questions of credibility of witnesses. Id.

Howe argues that Midgett, who stopped him for a traffic violation, did not have authority to do a pat-down search for weapons under Ark. R. Crim. P. 3.4 (2001). Midgett had probable cause to stop and detain Howe for erratic driving and failure to affix and display a license plate on his motorcycle. See Ark. Code Ann. § 27-14-716(a)(2)(c) (Repl. 1998). A motorist who is stopped for violating a traffic law is subject to a pat down search for weapons under Ark. R. Crim. P. 3.4, "if the facts available to an officer would warrant a person of reasonable caution to believe that a limited search was appropriate." Shaver, supra at 15; see State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). Clearly, Midgett was justified in doing a pat-down search under the facts in this case. Midgett testified that after Howe stopped his motorcycle, he threw an object into the field and zipped his coat up to the neck. Howe also appeared to be guarding something on his left side. Midgett testified that these actions were "red flags" to him that Howe might be hiding something, such as a weapon. Under these circumstances, it was reasonable for Midgett to do a pat-down search out of concern for his safety.

Howe next argues that Midgett lacked probable cause to arrest him for disorderly conduct during the pat down, and thus the search incident to arrest was also improper. As support for this argument, Howe alleges that Midgett had finished the pat down and had found no weapons whenhe was placed under arrest. Howe also points to Midgett's testimony that Howe did not actually threaten him. Under the relevant provision of Ark. Code Ann. § 5-71-207 (Repl. 1998), a person commits disorderly conduct if, "with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk thereof, he engages in fighting or in violent, threatening, or tumultuous behavior..." Midgett testified that as he was in the process of patting down Howe and approached his left side, Howe jerked away, pointed his finger at Midgett, and cursed at him. After Midgett warned Howe that he would place him under arrest if he did not allow him to complete the pat down, Howe then jerked away again as Midgett continued to pat down his left side. This time, Howe raised his voice and cursed at Midgett, pointing his finger closer to Midgett's face. Midgett testified that he placed Howe under arrest to avoid a physical confrontation. From this testimony, the trial judge found that Midgett was unable to complete the pat down before he placed Howe under arrest, and that Howe's behavior was threatening.

The trial judge's finding that Midgett had probable cause to arrest Howe for disorderly conduct was not contrary to the preponderance of the evidence. Probable cause to make a warrantless arrest does not require the degree of proof required to sustain a conviction. Williams v. State, 47 Ark. App. 143, 887 S.W.2d 312 (1994). Howe acted in a threatening manner, by cursing and pointing at Midgett. See Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998)(finding that defendant violated disorderly conduct statute by cursing at officer and grabbing his arm); see Williams, supra( holding that probable cause existed to arrest defendant where he cursed at officers and pounded on store window). Howe's actions prevented Midgett from continuing the pat down, thereby causing Midgett to place him under arrest, and constituted a public inconvenience. See Farr v. State, 6 Ark. App. 14, 636 S.W.2d 884 (1982)(holding that combative behavior towards police officers on private property, causing appellant to be charged with six crimes, constituted a publicinconvenience).

Under Ark. R. Crim. P. 4.1 (2001), Midgett had the authority to arrest Howe without a warrant because of his disorderly conduct. Once Howe was under arrest, Ark. R. Crim. P. 12.1 allowed him to search Howe. Midgett was entitled under Rule 12.1 to do a full search of Howe, including his pockets, and seize the drugs and drug paraphernalia he found. Hazelwood v. State, 328 Ark. 602, 945 S.W.2d 365 (1997). Also, under Ark. R. Crim. P. 12.2, this evidence would have been inevitably discovered during an inventory search at the sheriff's office. Id. Based on the totality of the circumstances, there is ample evidence to support the trial court's ruling denying Howe's motion to suppress the evidence found on his person.

Howe next argues that the trial court erred in denying his motion to suppress evidence seized on his farm site. Howe argues that the search of the area around his grain bins on his farm, without a search warrant, was a violation of his Fourth Amendment rights. The trial judge ruled that the evidence found outside the grain bins was properly seized, because the bins were located in an open field where Howe had no expectation of privacy. The United States Supreme Court and the Arkansas Supreme Court have found that no legitimate expectation of privacy exists in an open field. Oliver v. United States, 466 U.S. 170 (1984); Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999). Regardless of Howe's argument that farmers have a reasonable expectation of privacy in their farmlands and equipment, there is no societal interest in protecting the privacy of an activity that occurs in an open field, "such as the cultivation of crops." Oliver, supra at 179; see McDowell v. United States, 383 F.2d 599 (8th Cir. 1967)(holding that fact that open lands were part of commercial enterprise did not render warrantless search constitutionally unreasonable). Because open fields are accessible to the public and fences or "No Trespassing" signs do not bar the pubic from viewing open fields, society does not recognize an expectation of privacy in open fields asreasonable. Id.

Howe argues that his "Keep Out" sign established an expectation of privacy; however, while this may establish a subjective expectation of privacy in his farmland, it does not make this expectation legitimate in the sense required by the Fourth Amendment. Id. Howe also argues that the testimony by the officers that they would have arrested a prowler for trespassing on his land if they had found someone, evidences a legitimate expectation of privacy in his land. This argument has no merit, as the rights protected by the "common law of trespass have little or no relevance to the applicability of the Fourth Amendment." Id. at 184.

The grain bins on Howe's farmland were not enclosed by fences or gates, and Howe's residence was eight miles away, with the nearest residence being a couple of miles away. The evidence established that Howe's farm should be considered an open field in which he had no legitimate expectation of privacy. Accordingly, the trial court did not err in denying Howe's motion to suppress the evidence found outside the grain bins.

Howe next argues that the trial court erred in allowing a witness to testify that a vacuum cleaner bag found contained methamphetamine residue when the bag had not been submitted for drug analysis. The trial court has wide discretion in making evidentiary rulings, and those rulings will not be reversed absent a manifest abuse of discretion. Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000). Also, the appellate court will not reverse an evidentiary ruling absent a showing of prejudice. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001).

At trial, Midgett testified that there was a white residue inside vacuum cleaner bags found outside the grain bins, and that he believed it to be methamphetamine residue. Howe objected to this testimony because Midgett was not qualified to testify as to whether there was methamphetamine in the bags when the bags had not been submitted for chemical testing. The trialcourt overruled the objection, because Midgett was only testifying as to what the substance appeared to be, and Howe would be able to cross-examine Midgett on this point.

Both the Arkansas Supreme Court and this court have consistently allowed officers to testify based on their education and experience. Redman v. St. Louis Southwestern Ry. Co., 316 Ark. 636, 873 S.W.2d 542 (1994). Moreover, lay testimony may be sufficient to establish the identity of a controlled substance, without the introduction of expert chemical analysis, where the officers are qualified to testify due to their training and experience. Blair v. State, 16 Ark. App. 1, 696 S.W.2d 755 (1985); Boyd v. State, 13 Ark. App. 132, 680 S.W.2d 911 (1984). In Hendrix v. State, we found that it was error to allow an officer to testify that, in his opinion, a substance was cocaine, where no attempt was made to qualify him as having more experience with controlled substances than an average juror. 40 Ark. App. 52, 842 S.W.2d 443 (1992).

At trial, Deputy Midgett testified that he had experience with drug cases, had received some narcotics training through a lab-spotters program, and that he was certified D.A.R.E.. Given this testimony as to his qualifications in recognizing controlled substances, the trial court's ruling allowing Midgett's opinion that he believed the substance to be methamphetamine residue was not an abuse of discretion. Moreover, Howe has not shown that he was prejudiced by this ruling. Although the residue in the vacuum cleaner bags was evidence of his attempt to manufacture methamphetamine, there was substantial other evidence to support this conviction, such as lithium strips and chemical by-products of methamphetamine production. Where the evidence of guilt is overwhelming, slight errors in the introduction of evidence are not reversible errors. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001).

For his final argument, Howe contends that the trial court erred in allowing hearsay testimony to provide the requisite proof of possession of a controlled substance in an amountsufficient to establish intent to deliver. The trial court allowed Officer Jeff Braddish to testify as to the street values for certain amounts of methamphetamine. Howe objected on the basis that any knowledge Braddish possessed was hearsay, and obtained from confidential informants. The trial court, after allowing Howe to voir dire Braddish, overruled the objection on the basis on Ark. R. Evid. 702 and 703.

The determination of a witness's qualification as an expert is within the sound discretion of the trial court and absent an abuse of discretion, it will not be reversed. Izzard v. State, 10 Ark. App. 265, 663 S.W.2d 192 (1984). Rule 702 states that "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." According to Rule 703, if the facts or data constituting the expert's testimony are of a type reasonably relied upon in the particular field, the facts or data need not be admissible in evidence. Although Howe argues that Braddish's testimony was inadmissible hearsay based on statements made by others, "it is well settled that an expert may base his opinion on facts learned from others despite their being hearsay." Arkansas State Hwy. Comm'n v. Schell, 13 Ark. App. 293, 297, 683 S.W.2d 618, 621 (1985); also see Morris v. State, 21 Ark. App. 228, 731 S.W.2d 230 (1987). The lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion, but only goes to the weight to be assigned it. Schell, supra. Under Rule 703, the expert must be allowed to disclose the basis for his opinion, so that its credibility can be evaluated. Id. An officer's testimony as to the street values of a controlled substance is proper expert testimony where the officer is qualified by training or experience. See Izzard, supra. Here, Braddish testified about his years of experience in doing controlled drug buys, during which he became familiar with the street values of drugs such as methamphetamine. Thistestimony was proper under Ark. R. Evid. 702 and 703, and the trial court did not abuse its discretion in allowing the testimony.

Affirmed.

BIRD and JENNINGS, JJ., agree.