ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION II

MICHAEL JAMES WICKER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

No. CACR02-01161

Opinion Delivered September 3, 2003

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT

CR 01-266-3

HON. GRISHAM A. PHILLIPS, JR., JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Michael James Wicker entered conditional pleas of guilty to the charges of: (1) manufacture of a controlled substance, methamphetamine; (2) possession of a controlled substance, methamphetamine; (3) possession of drug paraphernalia; (4) possession of pseudoephedrine with intent to manufacture methamphetamine, reserving his right to challenge on appeal the trial court's denial of his motion to suppress, pursuant to Ark. R. Crim. P. 24.3(b) (2002). He was sentenced to twenty years in the Arkansas Department of Correction. Appellant's sole issue on appeal is whether the trial court erred in not suppressing the evidence discovered in the warrantless search of his residence in violation of his Fourth Amendment rights.

On or about April 20, 2001, police officers received information from a pest control worker and others about strong odors and other observations at appellant's apartment. On April 20, three police officers from the Group 6 Narcotics Task Force arrived at appellant's apartment, knocked on the door, and entered upon being greeted by appellant. At the time the door was opened, Officer Taylor stated that he noticed a strong chemical odor consistent with the methamphetamine manufacturing process. Officer Taylor also testified that in plain view from the doorway were some torches, a small set of scales, and a black plastic item that had a roll of white powder substance on it located on the coffee table. Officer Taylor testified that appellant gave him oral consent to search the residence. Officer Burns likewise stated that appellant gave Officer Taylor oral consent to search the residence.

Appellant testified that he never actually told the police officers that they could not search the residence and that he did not try to resist the search, but that he did not specifically give the officers consent to search. Chemical evidence related to the manufacture of methamphetamine was found pursuant to the search that resulted in the filing of the before-mentioned charges. From appellant's conditional guilty plea and resulting sentence comes this appeal.

When reviewing a denial of a motion to suppress, we conduct a de novo review based upon the totality of the circumstances, reviewing findings of historical facts 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. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). Appellant's argument in this case is scarcely one page. He states that he never actually told officers that they could come into his residence; rather, they simply came in and walked around without ever asking. Appellant claims that he did not say anything to the officers, but merely sat on the couch while they looked around the apartment. Appellant contends that the State has a heavy burden to prove by clear and positive testimony that a consent to search was freely and voluntarily given. See Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). He maintains that the State cannot meet that burden by showing only acquiescence to a claim of lawful authority or by appellant's failure to object to the entry. Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997).

Arkansas Rule of Criminal Procedure 11.1 (2003) provides that a law enforcement officer may conduct a search or make seizures without a search warrant if consent is given to the search or seizure. Testifying for the State, Officer Taylor stated that upon arriving at appellant's residence and disclosing the information received about the presence of a strong chemical odor and other "things" observed there, appellant responded that the odor was the result of chemicals he was using to clean jewelry. Officer Taylor further testified that, while still outside of the residence, he requested permission to go in and look for evidence of illegal activity. According to Officer Taylor's testimony, appellant responded that there was "nothing there," and invited the officers to come inside his apartment.

Although appellant maintains that he did not talk to the officers, Officer Taylor testified that upon being asked if there were any firearms in the bedroom, appellant took him to the bedroom to show him there were none. Officer Taylor also stated that appellant offered a description of the uses of some of the chemicals that the officers found under the kitchen sink.

Officer Burns testified that he was present when officers from the Group 6 Narcotics Task Force went to appellant's apartment to investigate complaints that appellant was operating a "clandestine meth lab." Officer Burns testified that the officers knocked on the apartment door and appellant answered. He stated there was a strong odor coming from the apartment. Officer Burns further testified that after the door was opened, he could see a white female directly inside the apartment, and could see the coffee table in the living room, which appeared to have drug paraphernalia on it, including baggies, white powder, and a digital scale. Officer Burns also corroborated Officer Taylor's testimony that appellant gave them permission to search the apartment.

This appeal rests squarely on the credibility of the witnesses. At the suppression hearing, appellant stated that he did not give his consent to search the apartment. Conversely, each of the testifying officers maintained that appellant did give consent and cooperated with their search efforts. Conflicts in testimony are for the trial court to resolve, and the resolution turned on the trial court's assessment of the credibility of the witnesses, to which we defer. See Davis, supra. Additionally, the trial court is not required to believe the testimony of any witness, especially that of the accused, since he is the person most interested in the outcome of the proceeding. Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002).

The trial court's decision to deny appellant's motion to suppress was not clearly against the preponderance of the evidence. Accordingly, we affirm.

Affirmed.

Baker and Roaf, JJ., agree.