ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE KAREN R. BAKER

DIVISION III

EUGENE RAYMOND FISCHER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-1096

JUNE 19, 2002

APPEAL FROM THE MARION COUNTY CIRCUIT COURT

[CR 2000-80]

HONORABLE ROBERT MCCORKINDALE II, CIRCUIT JUDGE

AFFIRMED

This is an appeal from a jury verdict convicting appellant of manufacturing methamphetamine, possession of methamphetamine with the intent to deliver, possession of drug paraphernalia with the intent to manufacture methamphetamine, and possession of pseudoephedrine with the intent to manufacture methamphetamine. Appellant was sentenced to ten years in the Arkansas Department of Correction.

Appellant asserts two points on appeal, both regarding the denial of motions to suppress. First, he argues that the trial court erred in denying his second motion to suppress filed on April 12, 2001, claiming that there was no probable cause for law enforcement officers to be granted a search warrant for appellant's residence. Second, he contends that the trial court erred in denying his motion to suppress filed on March 20, 2001, because law enforcement officers illegally gathered evidence prior to the search warrant being issued and then used this tainted evidence to obtain a search warrant to search property owned by James Dennis Hudspeth, a co-defendant in this case.

We find that sufficient probable cause existed for the issuance of the warrant to search appellant's residence and that appellant lacked standing to challenge the search of property owned by his co-defendant. Accordingly, we affirm.

Standard of Review

When reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances, and reverse only if the ruling was clearly against the preponderance of the evidence. Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000).

Probable Cause

The Fourth Amendment to the U.S. Constitution and Art. 2 § 15 of the Arkansas Constitution provide protection against general search and seizure and require a warrant before a search may take place. Rule 13.1 of the Arkansas Rules of Criminal Procedure sets forth the procedure for issuance of a search warrant designed to ensure this protection. The portions of that rule relevant to the issues of this case provide:

(b) The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched.... An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place....

The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that specific things to be searched for and seized are located on the property to which entry is sought. Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001) (citing Zurcher v. Stanford Daily, 436 U.S. 547 (1978), Illinois v. Gates, 462U.S. 213, 103 S.Ct. 2317 (holding that there was a fair probability that contraband or evidence of a crime will be found in a particular place)). see also United States v. Malin, 908 F.2d 163 (7th Cir.1990). The affidavit must provide facts by direct or circumstantial evidence that there is reasonable cause to believe the specific things sought are located on the property to which entry is sought. Id.

Whether the reasonable or probable cause requirement is met turns on the adequacy of the affidavit or recorded testimony. The test for adequacy of the affidavit is set out in Illinois v. Gates, 462 U.S. 213, (1983) and Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983). The Arkansas Supreme Court reiterated this standard in State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999):

The 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 the 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 the reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Id. 338 Ark. at 312, 993 S.W.2d at 494.

Although the existence of a fact may be proved by circumstances as well as by direct evidence, the circumstantial evidence must be sufficient to lead to the inference. Yancey, 345 Ark. at 111, 44 S.W.3d at 320 (citing Farmers' & Merchants' Bank of Bearden v. State Use Calhoun County, 180 Ark. 994, 23 S.W.2d 624 (1930)). Where circumstantial evidence is relied upon to establish a fact, "the circumstances proven must lead to the conclusion with reasonable certainty and must be of such probative force as to create the basis for a legal inference and not mere suspicion." Id. (citing Wesson v. United States, 172 F.2d 931, 933 (8th Cir. 1949)).

Appellant asserts that law enforcement officers relied upon the "known criminal" argument to obtain the warrant to search appellant's home. The Arkansas Supreme Court in Yancey explained the insignificance of a suspect's past criminal history when weighing the facts and circumstances articulated as the basis for a search warrant. The court warned that this type of:

information is provided apparently to infer appellants are known criminals and known criminals would be expected to have the sought evidence in their homes. The knowncriminal averment is not only insufficient to support a finding of reasonable cause but is entitled to no weight whatsoever.

Yancey, 345 Ark. at 112, 44 S.W.3d at 320-21.

However, the affidavit articulates facts surrounding appellant's activities that go beyond the single fact that he had previous drug-related convictions. In addition to the affidavit's citation of previous drug convictions, the court had the following significant allegations before it. Law enforcement officers from three separate jurisdictions provided the information for the affidavit. The information was gathered and then presented in cooperation to the issuing court. During the eight weeks preceding the warrant request, officers conducted surveillance of appellant's home. They observed numerous vehicles arriving, staying a short time, then leaving. They checked the ownership of the vehicles from the license plates and discovered that several of the vehicles were registered to known drug users and dealers. One of the vehicles was registered to a co-defendant who resided near an open field where officers had discovered several items used to manufacture methamphetamine. A structure was erected approximately 100 yards from where these items were located. A driveway led from this structure to the co-defendant's driveway.

Law enforcement officers saw the appellant engaged in the last stage of the manufacturing process of methamphetamine in the field next to the structure near the co-defendant's property. They observed the defendant mixing chemicals that are used in the manufacturing of methamphetamine. From the officers' observations, they concluded that the initial preparation of the manufacture of the contraband occurred elsewhere.

For a search warrant to issue, evidence, either direct or circumstantial, must be provided to show contraband or evidence of a crime sought is likely in the place to be searched. Standing alone, circumstantial evidence that the suspect may be a drug dealer is not circumstantial evidence thatanything is in his home. Yancey , supra. To then allow an inference that the suspect likely have contraband or evidence of a crime in their homes is to base an inference upon an inference, which is also known as mere suspicion or speculation. It is not allowable under the rules of evidence to draw one inference from another or to indulge presumption upon presumption to establish a fact. Reasonable inferences may be drawn from positive or circumstantial evidence, but to allow inferences to be drawn from other inferences, or presumptions to be indulged from other presumptions, would carry the deduction into the realm of speculation and conjecture. Id. (citing Williams v. State, 222 Ark. 458, 261 S.W.2d 263 (1953)).

The allegations here go beyond the inference that appellant's previous drug-related activity makes it reasonable to suspect he is concealing contraband in his home. In this case, known drug dealers and users repeatedly visited appellant's home for short periods of time. One of these visitors was connected to property upon which officers had discovered items used to manufacture methamphetamine, and officers had observed appellant engaged in the manufacturing process at this same location with this individual. Appellant's conduct and the activity surrounding appellant's home, observed and articulated by officers, was sufficient to create probable cause that items used in the initial preparation of the manufacturing process would be located at appellant's residence.

We hold that the affidavit supplies sufficient evidence to satisfy Rule 13.1 and our case law. Therefore, the trial court did not err in denying appellant's second motion to suppress filed on April 12, 2001.

Standing To Assert Fourth Amendment Violation

Neither did the court err in denying appellant's motion to suppress filed on March 20, 2001. Appellant argues that the search of a co-defendant's property was illegal and that this illegallyobtained information was used as the basis for search. However, appellant's argument fails to provide a basis from which we can conclude that he has standing to contest the search of his co-defendant's premises and property.

"Rights secured by the Fourth Amendment are personal in nature, and may not be vicariously asserted." Fouse v. State, 73 Ark. App. 134, 139, 43 S.W.3d 158, 162 (2001). "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." Id. The test to determine standing "is whether a defendant manifested a subjective expectation of privacy in the area to be searched and whether society is prepared to recognize that expectation as reasonable." Id.

Appellant does not show that he had an expectation of privacy. Without the showing that he manifested a subjective expectation of privacy in his co-defendant's property, appellant has no standing to vicariously assert Fourth Amendment protection. Therefore, his argument must fail.

Affirmed.

Griffen and Vaught, JJ., agree