FROM THE DESHA COUNTY CIRCUIT COURT, ARKANSAS CITY DISTRICT
[NO. 21ACR-15-57] HONORABLE SAM POPE, JUDGE
Law Office, by: Gary W. Potts, for appellant.
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
MARK KLAPPENBACH, JUDGE.
Cameron Anderson was found guilty after a jury trial in Desha
County Circuit Court for the crimes of aggravated robbery,
theft of property, and attempted capital murder. Anderson
appeals the denial of his pretrial motion to suppress
evidence gained in a search of an apartment in Monticello,
Arkansas. The search was initiated after one of the apartment
residents had given his consent to search. We hold that the
trial court's denial of the motion to suppress was not
clearly erroneous. We therefore affirm.
standard of review for a trial court's action granting or
denying motions to suppress evidence obtained by a
warrantless search requires that we make an independent
determination based on the totality of the circumstances,
giving respectful consideration to the findings of the trial
court. Love v. State, 355 Ark. 334, 138 S.W.3d 676
(2003). We give considerable weight to the findings of the
trial court in the resolution of evidentiary conflicts and
defer to the superior position of the trial court to pass on
the credibility of witnesses. Breshears v. State, 94
Ark.App. 192, 228 S.W.3d 508 (2006). Illegal entry by law
enforcement officers into the homes of citizens is the
"chief evil" the Fourth Amendment is intended to
protect against and therefore is of the highest degree of
seriousness. Payton v. New York, 445 U.S. 573
(1980). Warrantless entry into a private residence is
presumptively unreasonable under the Fourth Amendment.
Latta v. State, 350 Ark. 488, 88 S.W.3d 833 (2002).
Nonetheless, that presumption may be overcome if the police
officer obtained consent to conduct a warrantless search.
See Stone v. State, 348 Ark. 661, 74 S.W.3d 591
(2002). Consent to search the premises can be given only by a
person who, by ownership or otherwise, is apparently entitled
to give or withhold consent. Ark. R. Crim. P. 11.2(c) (2017).
The determination of third-party consent, like other factual
determinations relating to searches and seizures, must be
judged against an objective standard. See Hillard v.
State, 321 Ark. 39, 900 S.W.2d 167 (1995). The test is
whether the facts available to the police officer at the
moment would warrant a person of reasonable caution to
believe that the consenting party had authority over the
Fourth Amendment rights against unreasonable searches and
seizures are personal in nature, a defendant must have
standing before he or she can challenge a search on Fourth
Amendment grounds. Ramsey v. State, 2015 Ark.App.
669, 476 S.W.3d 214. It is well settled that the defendant,
as the proponent of a motion to suppress, bears the burden of
establishing that his or her Fourth Amendment rights have
been violated. Embry v. State, 70 Ark.App. 122, 15
S.W.3d 367 (2000). A defendant may testify at a suppression
hearing regarding the proprietary or possessory interest
necessary to establish standing without danger of
self-incrimination. Ramage v. State, 61 Ark.App.
174, 966 S.W.2d 267 (1998). 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. One is not entitled to automatic
standing simply because he or she is present in the area or
on the premises searched or because an element of the offense
with which he or she is charged is possession of the thing
discovered in the search. Id. A visitor usually
lacks a rightful expectation of privacy when present in the
home of another unless the visitor stays overnight. See
Minnesota v. Carter, 525 U.S. 83 (1998); United
States v. Hood, 551 F.Supp.2d 766 (W.D. Ark. 2008). The
pertinent inquiry regarding standing to challenge a search is
whether a defendant manifested a subjective expectation of
privacy in the area searched and whether society is prepared
to recognize that expectation as reasonable. Littlepage
v. State, 314 Ark. 361, 863 S.W.2d 276 (1993);
Anderson v. State, 103 Ark.App. 137, 286 S.W.3d 763
facts presented at the suppression hearing were as follows.
Anderson was a person of interest in the investigation of an
August 21, 2015 armed robbery of a Sonic in Dumas, Arkansas.
The Monticello police had received a tip that Anderson might
be at a particular apartment in Monticello on Gabbert Street.
At that time, Tyrequs Davis and his brother, Jarius McCraney,
were living at that apartment, located at 517 South Gabbert,
Apartment B. McCraney's mother had paid the bills on the
apartment for the month of August. Davis and McCraney each
had his own bedroom; McCraney occupied the master bedroom,
which had a closet. No one else lived in that apartment
during August 2015.
police chief of Monticello, Eddie Deaton, testified that he
and other officers went to the apartment and made contact
with Davis at the door. Deaton told Davis that they had
received information that Anderson might be at this apartment
and that they would like to come in to look if Davis would
consent. According to Deaton, he obtained Davis's consent
without using any coercion, threats, or harassment. Deaton
asked Davis to sign a written consent if he agreed to it.
Davis signed. Upon entry into the living room where two other
men were playing video games, Deaton and Captain Carlos
Garcia smelled the odor of marijuana, which odor Deaton
mentioned to Davis. Garcia testified that Deaton was the one
who spoke with Davis, and Garcia confirmed that consent was
obtained before they entered the apartment and smelled
marijuana. The officers went through the living room and
kitchen, searched Davis's bedroom, and then went into the
other bedroom, where they found Anderson hiding in a closet
under some clothing. Anderson was taken into custody.
testified that they were also looking for weapons related to
the armed robbery, although Deaton did not specifically ask
for consent to search for weapons in the apartment. A
backpack was at the foot of the bed about ten feet from the
closet where Anderson had been hiding. Officers unzipped the
backpack, and inside they found papers with the name
"Lamark Patton" handwritten on them along with a
also testified at the hearing. Davis characterized Anderson
as "an acquaintance, " and as far as he knew,
Anderson had never stayed the night at the apartment. Davis
stated, "I just know him when I see him." Anderson
was his brother's friend, but Davis did not remember
Anderson ever visiting the apartment when he (Davis) was
there. He recalled that at around 1:45 a.m. on August 23,
2015, the Monticello police came to the apartment, and he
answered the door. He testified that he did not know Anderson
was inside his apartment when the police came to the door.
Davis agreed that he gave his written consent to search the
apartment but said that he gave consent only after the police
had told him that they smelled weed and that he had to sign
it. Neither Anderson nor McCraney testified at the
filed a motion to suppress the evidence arguing that (1)
valid consent was not acquired, and alternatively (2) the
police exceeded the scope of any consent by searching the
backpack. The trial court found that both Davis and McCraney
had the right to consent to the search of the apartment; that
Chief Deaton was more credible about whether the consent to
search was freely and voluntarily acquired from Davis,
especially since his testimony was corroborated by Captain
Garcia; and that Anderson failed to establish "some
privacy interest or property interest or expectation of
privacy in this location." The motion to suppress was
denied. Following the jury trial, Anderson filed this appeal.
contends on appeal that the trial court clearly erred in the
following ways: (1)by finding that the State established that
Davis's consent was freely and voluntarily given; (2)by
not finding that the search of the backpack exceeded the
scope of Davis's consent to search for Anderson; and (3)
by finding that Anderson lacked standing to assert an
expectation of privacy in the backpack. We hold that the
trial court did not clearly err in finding that Anderson
lacked standing to challenge the search of the apartment or
the backpack, rendering any discussion about the validity and
scope of Davis's consent moot. Even so, Davis clearly had
the authority to consent to the search, the trial court was
convinced that Davis had freely and voluntarily given consent
to search, and Davis never limited or restricted the scope of
that consent while officers were present.
explain, a defendant's rights are violated only if the
challenged conduct invaded his legitimate expectation of
privacy, rather than that of a third party, and the proponent
of a motion to suppress bears the burden of establishing that
his or her Fourth Amendment rights have been violated.
Gaylord v. State, 354 Ark. 511, 127 S.W.3d 507
(2003). Anderson failed to present any evidence (testimony or
otherwise) to support the assertion that he possessed a
reasonable expectation of privacy in the apartment or the
backpack. There was no evidence to indicate that Anderson was
an overnight guest in the apartment. In contrast, the State
presented ample evidence that Davis possessed authority to
consent to the search, and it presented evidence deemed
credible by the trial court that the consent was freely and
voluntarily given by Davis. The State presented evidence that
Davis considered Anderson an acquaintance and did not believe
that Anderson had ever stayed overnight at this apartment.
Davis said that he was unaware that Anderson was in the
apartment when officers knocked on the door. Moreover, the
backpack contained papers with a different person's name
on them, supporting a ...