NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE JOSEPHINE LINKER HART

DIVISION II

CHARLES ANTHONY MARTIN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-1072

December 23, 2002

APPEAL FROM THE CLEBURNE COUNTY CIRCUIT COURT

[NO. CR-98-186]

HONORABLE JOHN DAN KEMP,

CIRCUIT JUDGE

AFFIRMED

Prior to being sentenced to ten years' imprisonment for the crime of manufacturing methamphetamine, appellant, Charles Anthony Martin, entered a conditional plea of nolo contendere, reserving in writing the right, on appeal, to review of the trial court's denial of his pretrial motion to suppress evidence. See Ark. R. Crim. P. 24.3(b). On appeal, he argues that the circuit court erred in refusing to suppress evidence seized from his truck pursuant to a search warrant because the search-warrant affidavit did not describe circumstances establishing reasonable cause to believe that things subject to seizure would be found in the truck. We affirm.

At the suppression hearing, the circuit court considered the contents of the search-warrant affidavit. The affiant, Deputy Lonnie Massey, stated that there was reasonable cause to believe that appellant's truck contained items used in the manufacture ofmethamphetamine and that those items tended to demonstrate that appellant was manufacturing

methamphetamine. In his affidavit, which was signed November 29, 1998, Massey stated that on that same day he and Deputy Greg Robertson had gone to the residence of Bobby Burton, the mother of Misty Smith, to locate Smith, who was a wanted felon and known to frequent that address. When he arrived, he smelled ether in an area immediately adjacent to a Dodge pickup. Massey knocked at the door of the residence for several minutes without a response. Meanwhile, he recognized at the residence a parked car that belonged to Larry Nations, who had been arrested the previous night and charged with manufacturing methamphetamine. He also knew that Smith frequently drove the car. Massey checked the license numbers for both vehicles and discovered that there was no registration information available for the truck.

Massey noticed several guns in the cab of the truck, as well as a drab olive duffel bag. In plain sight in the bed of the truck was a large green pressure tank, typically used for transporting gases under pressure. Also in the bed of the truck were two ice chests, a length of plastic tubing, and a pressure tank similar to those used to inflate tires.

As Massey was walking around the truck, appellant came to the door of the house. Appellant said that the truck was his, and after Robertson requested information on appellant through ACIC, appellant volunteered that he had been charged with a Class D felony. Robertson advised appellant of his Miranda rights, and appellant stated that the guns belonged to him. Appellant gave Massey permission to enter the truck and examine the serial numbers on the guns. Using ACIC, Massey determined that none of the guns werelisted as stolen.

Massey then asked appellant to consent to a search of the truck, and appellant declined. Appellant stated that someone else had used his truck recently and may have left items in it for which he did not want to get in trouble.

Massey further averred that, from his training and experience, pressurized containers of various types are used to contain anhydrous ammonia, which is used in the manufacture of methamphetamine. Further, he stated that a strong chemical odor, often ether or ammonia, will be detected in areas used for the manufacture of methamphetamine. He also stated that the simultaneous presence of ether, coffee filters, plastic tubing, glass containers, ice chests, and pressurized cylinders are common to most methamphetamine labs. Attached to the affidavit was a list of items that are used in the manufacture of methamphetamine along with a "recipe" for the manufacture of methamphetamine.

According to documents in the record, a cooler in the truck contained 200 milliliters of a solvent comprised of lithium hydroxide, ether starting fluid, and 2.84 grams of methamphetamine. Also found were several hundred tablets containing pseudoephedrine, a compressed cylinder of ammonia, and one bottle of methanol. Appellant, however, argues that neither the items identified in the affidavit nor the facts presented therein would indicate that appellant was engaged in criminal conduct. Massey could only generally conclude that, based on his training and experience, the items described in the affidavit were common to the manufacture of methamphetamine, and further, he did not specifically state how these items played a role in the manufacturing process. Also, he notes that Massey did not say thatthe smell of ether was coming from the truck, and nevertheless, the smell of ether alone or in combination with the items described in the affidavit would not establish probable cause.

Because Massey's affidavit was the only information before the magistrate when he issued the warrant, our review of the probable cause for the issuance of the warrant is confined to the information contained in the affidavit. Herrington v. State, 287 Ark. 228, 231, 697 S.W.2d 899, 900 (1985). "The task of the magistrate who issues the warrant is simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place," and "[w]e apply the totality-of-the-circumstances test in determining whether the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant." Sanders v. State, 76 Ark. App. 104, 112-13, 61 S.W.3d 871, 877 (2001), cert. denied, 123 S.Ct. 82 (2002) . As a general matter, determinations of probable cause are reviewed de novo on appeal, and we review findings of historical fact only for clear error and give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Givens v. State, 76 Ark. App. 440, 442, 69 S.W.3d 50, 52 (2002). In reviewing affidavits, "[a]lthough 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 v. State, 345 Ark. 103, 111, 44 S.W.3d 315, 320 (2001). However, "[w]here circumstantial evidence is relied upon to establish a fact, `the circumstances proven must lead to the conclusion with reasonable certainty and must be ofsuch probative force as to create the basis for a legal inference and not mere suspicion.'" Id. (citation omitted). "The critical element in a reasonable search is not that the owner of the property is suspected of [a] 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." Id. at 116, 44 S.W.3d at 323.

We conclude that there was reasonable cause to believe that items associated with the manufacture of methamphetamine would be found in appellant's truck. Certainly the smell of ether alone, without other factors, does not warrant a finding of probable cause. See Bennett v. State, 345 Ark. 48, 53, 44 S.W.3d 310, 313 (2001). Massey, however, further described in the affidavit other items he observed: the pressure tank for carrying pressurized gasses, the ice chests, and the length of plastic tubing. While Massey did not explain how these items might be used in the manufacture of methamphetamine, he did aver that, based on his experience and training, the smell of ether and the presence of such items were common in methamphetamine labs. We have previously stated that "[i]t is settled law that the issuing judge was entitled to consider [an officer's] experience when deciding to issue a warrant." McCormick v. State, 74 Ark. App. 349, 358, 48 S.W.3d 549, 555 (2001). Reviewing the totality of the circumstances, we conclude that appellant's possession of these items, along with the smell of ether, established probable cause to believe that items associated with the manufacture of methamphetamine could be found in appellant's truck. Consequently, we affirm.

Affirmed.

Pittman and Bird, JJ., agree.