Reyes v. State

• Decision Date: 18 September 1997
• Docket Number: No. CR,CR
• Parties: Rogelio REYES and Basilio Reyes, Appellants, v. STATE of Arkansas, Appellee. 96-1385.
• Court: Arkansas Supreme Court

Page 199

954 S.W.2d 199

329 Ark. 539

Rogelio REYES and Basilio Reyes, Appellants, v. STATE of Arkansas, Appellee.

No. CR 96-1385.

Supreme Court of Arkansas.

Sept. 18, 1997.

Thomas Travis, Little Rock, for Appellant.

Winston Bryant, Atty. Gen., David T. Raupp, Asst. Atty. Gen., Little Rock, for Appellee.

BROWN, Justice.

Appellants Rogelio Reyes and Basilio Reyes appeal from judgments for possession of cocaine with intent to deliver, possession of drug paraphernalia, and possession of marijuana. Rogelio Reyes, as a habitual offender, was sentenced to life in prison, 30 years in prison, and one year in prison, respectively, for each of the convictions plus fines totaling $11,000. Basilio Reyes was sentenced to prison time of 40 years, 10 years, and one year, respectively, for each of his convictions plus fines of $11,000. The trial court ordered all sentences for prison time to run concurrently.

The Reyeses now appeal and assert two grounds: (1) the search of a vehicle at police headquarters was an illegal search and it was error not to suppress the items seized; and (2) it was error for the court not to order the prosecutor to divulge the identity of the confidential informant. We affirm the trial court on both points.

The State's case relied almost exclusively on the testimony of Fort Smith Police Detective Dennis Alexander. Detective Alexander testified that during the early morning hours of April 8, 1995, a warrant was obtained to search Room 28 of the Capri Motel located in Fort Smith. He explained that prior to getting the warrant, a confidential informant engaged in a controlled buy in that room and exchanged marked money for a bag of crack cocaine. Detective Alexander testified that once the warrant was received, he and Fort Smith Police Detective Wayne Barnett entered Room 28 with the search warrant and found the Reyeses alone in the room.

Detective Alexander testified to several items of contraband found in the motel room, including a bag containing 10 rocks of crack cocaine found in a white sock in the bed's headboard; a bag of powder cocaine found in the same white sock in the bed's headboard; a bag containing marijuana and rolling papers found in a brown sock in the bed's headboard; digital scales and a vinyl case located on the dresser; $590.00 in cash taken from Basilio Reyes's wallet; and $123.00 from the wallet of Rogelio Reyes, which included five marked bills given to the confidential informant. Detective Alexander estimated conservatively that the street value of the seized crack cocaine was about $5,000 and the value of the powder cocaine was about $3,600.

Detective Alexander also testified that he found car keys on the table that were linked to a tan 1987 Ford sedan parked on the motel parking lot near the door of the room. He stated that the confidential informant told him the vehicle belonged to the Reyeses. He testified that upon searching the vehicle, the police officers discovered a box of baking soda in the trunk, while a narcotics dog led them to a large test tube found between the battery and firewall under the car's right front fender. The test tube contained a colored residue later identified as having a cocaine base. The drug paraphernalia and test tube were not tested for fingerprints.

On cross-examination, Detective Alexander admitted that the room was rented by a person named Carl Jones, who was not arrested in connection with the drug offenses. When asked his reason for seizing and searching the Ford sedan, he explained that it was not uncommon to find additional drugs and paraphernalia in automobiles identified under these circumstances because drug dealers rarely keep their entire supply together in case of an encounter with police. Detective Alexander added that the Capri Motel was one of Fort Smith's cheaper motels; that it was located in a high-crime area of town; and that he had executed many search warrants at that motel in the past.

At the close of the State's case, the Reyeses proffered into the record a subpoena for Carl Jones and Carl Jones's rap sheet, which contained numerous offenses. Basilio Reyes then testified in his own defense through the use of an interpreter. He explained that he and his brother had stopped at a bar in Fort Smith, when a tall man asked them if they wanted to "be with" a woman. They agreed and followed the man to the Capri Motel, where he had a room. The man said that he would go get the woman and some pizza, and Rogelio Reyes gave him $100 for the pizza. The man later returned with pizza and beer but no woman. The man explained he was still trying to get the woman or women. Shortly after he left, according to the testimony, the Fort Smith police officers barged into the room and arrested them.

I. Sufficiency of the Evidence

We first consider the Reyeses' argument regarding insufficiency of the evidence because the double-jeopardy clause precludes a second trial when a judgment of conviction is reversed for insufficient evidence. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996). The Reyeses argue that the prosecution failed to link them to the contraband found in the motel room. Insufficiency of the evidence is raised at trial by a motion for directed verdict. Counsel for the Reyeses, however, made only a general motion for directed verdict at the close of the State's case and then failed to renew the motion at the close of all the evidence. These lapses make it clear that this point is procedurally barred. See Ark. R.Crim. P. 33.1; Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997); Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996); Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996).

II. Suppression of Vehicular Search

Prior to trial, the Reyeses moved to suppress the items seized from the Ford sedan because the search occurred without a warrant. At the suppression hearing, Detective Alexander testified that he employed a first-time confidential informant who told him that the Reyeses were in Fort Smith to distribute cocaine. He testified that when he executed the warrant, he saw the car that had also been described by the confidential informant sitting in the Capri Motel parking lot. After the arrests, the car was removed by police officers from the motel parking lot because it was located in a high-crime area and taken to the Fort Smith Police Department for the search.

On cross-examination, Detective Alexander stated that he was able to connect Rogelio Reyes to the automobile by calling in the license-plate number over the police radio and doing an NCIC search. He admitted that both Reyeses were in custody and incapable of gaining access to their car when it was searched.

a. Standing.

The Reyeses' first task is to prove that they have standing to challenge the legality of the search. This court will not reach a Fourth Amendment argument where a defendant has failed to show that he has an expectation of privacy in the object of the search. See McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Only Rogelio Reyes was tied to the Ford sedan by Detective Alexander's NCIC search. Basilio Reyes, however, proved no connection with the vehicle, and, therefore, his expectation of privacy is deficient. ¹ See, e.g., Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997)(passenger lacked standing to challenge search of pickup truck); McCoy v. State, supra (driver without possessory interest in vehicle lacked standing to challenge its search). We conclude that Basilio Reyes has no standing to challenge the search of the car. The remaining discussion under this point will only apply to Rogelio Reyes.

b. Rule 14.1

In reviewing the denial of a motion to suppress evidence, this court makes an independent determination based on the totality of the circumstances and reverses only if the decision is clearly contrary to the preponderance of the evidence. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997), supp. op. denying reh'g, 327 Ark. 576-A, 940 S.W.2d 440 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). This court views the evidence in the light most favorable to the State. Id.

When police officers conduct a search without a warrant, we begin our review with the basic premise that a warrantless search is unauthorized. Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996); Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987). However, exceptions to the warrantless search rule have been recognized, including the exigency exception under Rule 14.1 of the Arkansas Rules of Criminal Procedure. Rule 14.1(a) provides in part:

An officer who has reasonable cause to believe that a moving or readily moveable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:

(i) on a public way or waters or other area open to the public[.]

Ark. R.Crim. P. 14.1(a).

Reasonable cause, as required by Rule 14.1, exists when officers have trustworthy information which rises to more than mere suspicion that the vehicle contains evidence subject to seizure and a person of reasonable caution would be justified in believing an offense has been committed or is being committed. Bohanan v. State, supra; Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989). On these facts, reasonable cause is supported by the following: (1) the Ford sedan was found parked near the motel room to be searched; (2) a large amount of contraband was found in the motel room as were the Reyeses and the car keys; (3) Rogelio Reyes was linked to the car by the confidential informant and by the NCIC search and had marked bills from the controlled buy on his person; and (4) Detective Alexander asserted that in his experience it was common to find items of contraband in the car of a...