ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION II

MARION LYNN RENFROE

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-845

JUNE 18, 2003

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[CR2002-22]

HONORABLE ROBERT EDWARDS, CIRCUIT JUDGE

AFFIRMED

Appellant, Marion Lynn Renfroe, entered a conditional plea of guilty to the offense of possession of cocaine with intent to deliver, reserving his right to challenge the trial court's denial of his motion to suppress on appeal, pursuant to Ark. Rule Crim. P. 24.3(b)(2002). He was sentenced to a term of 360 months in the Arkansas Department of Correction. We find no error and affirm.

At the suppression hearing, Officer Brandon Wilson of the Bald Knob Police Department testified that, early on the morning of November 29, 2001, he was sitting at the northbound 54-mile marker on-ramp on Highway 67/167. Officer Wilson explained that he was at the most southerly exit for Bald Knob, but that the exit ramp where he was sitting was not within his jurisdiction. At the time of trial, he understood that he was parked just outside his jurisdiction, although at the time he was parked there, he believed that he was within the city limits. He further testified that the segment of the highway between approximately the 54 ½ and 55 ½ mile markers was inside the

city limits, and the State Police authorized city officers to patrol the portion of the highway that is within the city's jurisdiction.

At approximately 1:35 a..m., a car that appeared to have no license tag passed Officer Wilson's location. Officer Wilson at first thought the car had no license tag because the license plate was not properly illuminated. Wilson caught up to the car before it reached the 55-mile marker and saw that it did, in fact, have a Florida license plate. He ran a check of that plate, and it showed that the license number was registered to a pickup truck, not a car. He received this information while he was crossing the overpass at the 55-mile marker, which is inside the city limits. He followed the car "a little farther" to determine how many people were inside the vehicle before making the stop. Appellant appeared to be alone in the vehicle, and Wilson stopped the car near the 56-mile marker, outside the city limits. Appellant was the driver.

Appellant did not have a driver's license with him, but he verbally informed Wilson of his driver's license number. He also said that he had no registration or insurance papers because he had borrowed the car from a friend in Florida. Wilson subsequently wrote appellant a warning citation. As Wilson talked to appellant, he noticed that appellant refused to make eye contact with him and that he acted "very nervous." Wilson asked appellant for consent to search his car, and appellant signed a consent form. After two other officers arrived, they searched the car and found beneath the rear seat a two-pound brick of plastic wrapped in black duct tape that contained a white powdery substance. A field test showed that the substance was cocaine.

Appellant filed a motion to suppress the cocaine alleging that the search of the vehicle was unconstitutional. The State first argues that appellant is procedurally barred from raising this issue because he failed to produce evidence at trial that he owned the car or that he otherwise had an interest in the car that would give him standing to contest the search. The State asserts that becauseappellant told Wilson that he did not own the car and failed to show that he had permission from the owner to possess the car, he lacks standing to challenge the search.

All searches conducted without a valid search warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992). While an automobile is not subject to the same expectation of privacy that exists with respect to one's home, a citizen does not surrender all the protections of the Fourth Amendment simply by entering an automobile. See id. Even so, the rights secured by the Fourth Amendment are personal in nature. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Accordingly, before an appellant can challenge a search on Fourth Amendment grounds, he must have standing. Id. Whether an appellant has standing depends upon whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Id. An appellant is generally required to prove that he has standing to challenge a search. See, e.g., Whitham v. State, 69 Ark.App. 62, 12 S.W.3d 638 (2000). An appellant has no standing to question the search of a vehicle unless he can show that he owns the car or that he gained possession of it from the owner or someone else who had authority to grant possession. Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998).

The State relies heavily upon Ramage, supra, in asserting appellant's failure to establish a reasonable expectation of privacy. The State emphasizes that appellant failed to provide testimony concerning appellant's authority to possess the car and compare it to Ramage where there was no testimony explaining the appellant's possession of the vehicle searched. The officer in Ramage only testified that the vehicle bore a fictitious plate and that appellant produced no driver's license, registration, or proof of insurance. In contrast, in the case before us, appellant's standing to challenge the search was established through Officer Wilson's testimony to the effect that appellanthad borrowed the car from a friend to travel to St. Louis to look at a truck for sale. We cannot say that appellant failed to establish that he had a subjective expectation of privacy in the vehicle merely because the testimony was established through the offer of the State's testimony, rather than elicited or repeated at the prompting of appellant's counsel. Furthermore, occupants of a vehicle have standing to assert their own Fourth Amendment rights, independent of the owners, such as in a challenge to the initial stop. State v. Bowers, 334 Ark. 447, 976 S.W.2d 379 (1998). Therefore, we reject the State's argument that appellant does not have standing.

Although appellant has standing to challenge the search, his argument fails. The Arkansas Supreme Court recently clarified the standard of review in cases involving the review of a motion to suppress evidence. See Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Id. When the record is silent regarding the trial judge's findings, the appellate court presumes that the trial judge made all the findings necessary to support the action taken. Coon v. State, 76 Ark. App. 250, 65 S.W.3d 889 (2001). In conducting a clear-error review on factual issues, we defer to a trial court's resolution of conflicting testimony and its assessment of witnesses' credibility. Lamb v. State, 77 Ark. App. 54, 70 S.W.3d 397 (2002).

The trial court found that the stop of appellant by Officer Wilson was lawful. We agree. Appellant questions whether Officer Wilson had authority to park outside his jurisdiction to watch traffic and then follow the violator into his jurisdiction to issue a traffic citation. Appellant asks whether the fact that Officer Wilson first observed the violation when he was parked outside of his jurisdiction prohibits the officer from lawfully following appellant into the officer's jurisdiction to issue a traffic citation.

An officer may effect an arrest outside of his jurisdiction if the officer witnesses a violation occurring within his jurisdiction and could have stopped the offender within his own jurisdiction. Thomas v. State, 65 Ark. App. 134, 985 S.W.2d 752 (1999). Although Officer Wilson first noticed appellant's violation of the law while parked outside his jurisdiction, he nevertheless observed appellant's vehicle during the time that he was driving within the city limits of the town of Bald Knob. He observed appellant driving the vehicle within the city limits with license tags that were not registered to the vehicle upon which they were displayed, in violation of Ark. Code Ann. § 27-14-306 (Repl. 1994), and that were not properly illuminated, in violation of Ark. Code Ann. § 27-36-215(e) (Supp. 2001). Officer Wilson made no effort to stop the vehicle until such time as he observed the vehicle within the city limits. Although Officer Wilson actually stopped the vehicle outside the Bald Knob city limits, he had continuously followed appellant's vehicle from inside the city limits until making the stop. The delay in stopping was to ensure officer safety by determining the number of individuals within the vehicle appellant was driving and does not affect the validity of the stop. See, e.g., King v. State, 42 Ark. App. 97, 854 S.W.2d 362 (1993). Therefore, no Fourth Amendment violation occurred. Furthermore, after the traffic stop, Officer Wilson obtained appellant's written consent to search the vehicle.

Appellant also argues that the evidence should have been suppressed because the State failed to timely provide the consent to search form. Appellant filed a motion for discovery on February 20, 2002. The original hearing on his motion to suppress was held on April 3, 2002. At this hearing, the State showed Officer Wilson the consent-to-search form that appellant had signed, and appellant objected on the basis that he had not been given a copy of the form and that a copy of it was not in the prosecutor's file. The deputy prosecutor admitted that the form was not in the file, but stated that the affidavit and other documents in the file referred to the consent form, so the existence of theform was not a surprise to appellant. The court overruled appellant's objection on the basis that appellant was not being tried, but allowed appellant the opportunity to explain how he was prejudiced by the omission at the end of the hearing. However, at the end of the hearing, appellant's attorney stated that he had not had time to discuss the matter with appellant in order to say how he had been prejudiced. The court therefore allowed appellant time to develop the issue by keeping the record open and resuming the hearing at a later date.

On May 2, 2002, before the hearing resumed, the court entered an order denying appellant's motion to suppress. Despite the entry of the denial, the court held a hearing on May 14, 2002, allowing appellant to present proof showing prejudice resulting from the fact that he had not been provided with the consent form. At the hearing, appellant argued that the form had an incorrect date and failed to specify where along Highway 67 the stop occurred. He claimed that these matters called into question Officer Wilson's competence and credibility, and the court allowed appellant to recall Officer Wilson. When Officer Wilson did not have the original consent form with him, the court recessed and ordered the officer to return to Bald Knob and get the form. Upon the officer's return, appellant questioned him about the form. Then, at appellant's request, the court summoned Officer Judy Ferren from Bald Knob to allow appellant to question her about what had happened to the warning ticket that Officer Wilson had issued to appellant. At the conclusion of the hearing, the court issued a "supplemental ruling" denying the suppression motion based upon all the evidence presented at the hearings.

When there has been a failure to comply with the discovery rule, the court may allow the offending party to permit the inspection of the undisclosed material, grant a continuance, prohibit the introduction of the evidence, or enter any other order that it deems proper under the circumstances. Ark. R. Crim. P. 19.7(a)(2003); Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). Failure to disclose evidence will not warrant reversal absent a showing of prejudice, and the appellant has the burden of showing that the omission was sufficient to undermine confidence in the outcome of the trial. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). The court afforded appellant ample opportunity to explore the exculpatory nature of the document and to cross-examine the State's witnesses concerning the document. The trial judge determines the credibility of witnesses who testify at a suppression hearing, and this court defers to the trial judge's superior position to determine credibility. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). Accordingly, we find no error with the trial court's denial of appellant's motion to suppress and affirm.

Stroud, C.J., and Pittman, J., agree.