*1
Mack BYARS Danny
STATE of Arkansas
CR 75-145
Opinion delivered February [Rehearing denied March 1976.] *2 Thweatt, for M. appellant. Thweatt and D. James John Guy Tucker, Gen., Asst. Atty. Jones, Atty. by. Jackson Jim Gen., for appellee. Byars, Danny Chief Harris, Carleton Justice. herein, with marijuana was charged possessing appellant verdict of deliver, returned a and a with intent to sell jury confinement at six years guilty, fixing punishment Correction, $5,000 fine. From the and a judg- Department entered, this ment so Byars brings appeal. the af- whether the first issues are being
Two presented, to search fidavit, Byars’ was issued which a warrant upon set out car, constitutional standards meets previously decisions, of this and decisions Court United States Supreme met, whether court, standards were not and if such consented that appellant can be ground upheld the'reto. discussed, obtained, hereinafter
Because of information Police, Arkansas State assign- W. D. Davidson Trooper At- then ed to Monroe County, accompanied Prosecuting Weems and an area Sam newspaperman, stopped torney car at Main and Walnut Streets Byars Brinkley took into and drove him to the custody Brinkley jail appellant placed where in a cell. Weems and the Byars newspaper- the scene of the arrest with automobile. man remained at meantime, In the of the State Captain Neighbors James Police had arrived at the scene. While was in the Byars re- Davidson went to the jail, Brinkley Municipal Judge a search warrant for car. The warrant quested appellant’s affidavit, was issued Davidson’s which reflects as follows: *3 believe
“That he has reason to that on the premises APA-299, LTD, ‘A known as 1970 Ford Arkansas green Plant, driven M. W. M. from Cotton by Danny Byars, Arkansas, Monroe, in the Arkansas’ of State of county there is now concealed certain namely being property, and or narcotics or other ‘Marijuana, drugs parapher- nalia’ which are ‘I have received certain information source, from a confidential of known and who reliability has furnishеd reliable information in the and that past, the ahas and suspect reputation general transporting and selling marijuana, drugs.’ “And the that facts establish the tending forego- for issuance of a Warrant are as Search ing grounds follows: ‘That the above men- marijuana, drugs LTD, tioned are concealed in the above 1970 Ford being APA-299, Arkansas license no. driven the bearing Plant, above M. Arkan- Cotton Danny Byars. suspect, ” sas.’ Davidson testified at a subsequently pretrial hearing that he the no other than information gave Municipal Judge warrant, that contained in the affidavit. After the obtaining station, Davidson returned to the removed from police Byars scene, and took him back to the where car jail appellant’s Police, was still Chief parked. Brinkley George Bethell, Gaddis, and a Robert accom- Brinkley policeman, Davidson and back to At this panied the scene. Byars point, there is a conflict the evidence. Bethell and Gaddis slight read to appellant, the warrant that testified positively David- Byars. read the that Weems Gaddis stating isit stated, don’t need the “You that son said Byars that testified rate, officers all the three At in the car.” want to effect, he did not stated, at this point Byars what and that embarrass family,” a show and “cause car. Weems of the was in the trunk officers were looking David- told his recollection appellant testified that trunk,” in the immediately for is son, “What are you looking was obtained. arrest, the warrant before after the station, where Thereafter, returned to police everyone 38 sealed the car and seized trunk of officers opened filled matter and vegetable partially packages green assorted matter and vegetable containing green plastic bags trial, from the State chemist Depart- at pills. Subsequently, tested matter Health testified vegetable ment of L. Sativa as Cannabis positively witnesses, of the because unavailability
Apparently both validity and because challеnged appellant state- of an in-custody search warrant and voluntariness Dur- ment, held five the trial court pretrial hearings. separate men- heretofore testified as these the officers ing hearings, court the trial tioned, at the conclusion hearings, addition, and, valid, warrant was held that the search *4 searched. for the car to be had appellant given permission state- from evidence in-custody The court did exclude ment. that under the decisions
We think unquestionably,
court, the
Court,
decisions of this
United States Supreme
the search
the issuance of
was
to sustain
affidavit
insufficient
Texas,
108, the court held
In
378 U.S.
warrant.
Aguilar
a
was insufficient
hearsay
an
based
justify
affidavit
upon
this
decision was
upon
expounded
U.S.,
The court stated
“[W]e from the rest it is considered former’s when apart tip could not is clear that a Commissioner the affidavit. It function. his constitutional it credit without abdicating his confidant the affiаnt swore that Though ‘reliable,’ he no reason in offered the magistrate support *** not of this conclusion. does contain a suf- tip ficient statement of the circumstances from underlying which the informer concluded that Spinelli running are not told how the FBI’s We bookmaking operation. — received his it not source information alleged the informant observed at work or personally Spinelli Moreover, he had ever a bet with him. if the placed informant came the information he did indirectly, his sources were reliable. why explain [Citing cases].”
The court concluded that the informant’s was not tip cause, sufficient to basis for a probable provide finding and added:
“In the absence of statement the manner in detailing which the information was it is im- especially gathered, that the describe accused’s criminal ac- portant tip in sufficient detail that know tivity may magistrate that he is on more substantial than a relying something casual rumor in the underworld or an ac- circulating сusation based on an individual’s reputation.” merely general emphasis] [Our Our owndecisionsare to the same In Waltonand Fuller v. effect. 245 Ark. (where S.W. 2d 462 the affidavit con- us),
tained more information than the one before law on affidavits based was summarized applicable hearsay follows:
“While an affidavit for a search may affiant, based it may observations upon personal based, also be informa- hearsay whole or in part, tion. When it is based hearsay, magistrate must cir- be informed of the underlying of some *5 concluded that cumstances from which an informant the where he said it was. He of a search was object proposed the circumstances from must also be advised of some of (whose informer which the officer concludes that in- disclosed) need not be then is credible or his identity 163 affidavit, formation reliable. An which does not contain affirmative with that affiant allegation speaks per- sonal contained therein matters knowledge alsо fails to show that information an uniden- given tified source was not or belief con- merely suspicion, clusion, has been not held to show cause.” probable [Our emphasis]
Likewise, State, 19, in Cockrellv. 256 Ark. 505 S.W. 2d 204, the were further as follows: requirements explained State, 362,
“In
246 Ark.
first referred to what had been said in Aguilar supra, to-wit: must be of some of the un- informed magistrate
“[T]he from circumstances which informant con- derlying cluded that the narcotics were where he claimed they were, and some of the circumstances from underlying informant, which the officer concluded whose *6 (citations omitted), disclosed, need not be identity 114, 378 U.S. at ‘reliable.’ or his information ‘credible’ 84 Ct. 1514. S. at
The court then stated: two- referred
“This is typically ‘Aguilar’s test test.” The first [Citing pronged ‘prong’ requires cases] cir facts or disclose the affidavit particular the informant which concluding cumstances justify second requires or a reliable trustworthy person. to demonstrate or circumstances facts tending specific informant, had in in the instance question, manner. The in a reliable his informаtion gathered is that they these twin requirements theory underlying that deter are dictated principle by long-standing to be made ‘neutral cause are minations probable rather than by and detached magistrate[s],’ ‘officer[s] often ferreting competitive enterprise engaged States, 1948, 10, 14, 333 U.S. crime.' v. United out Johnson 367, 369, 436, 440. If 2 L. Ed. S. magistrate Ct. the first which did not meet an affidavit prong accepted went, to the of test, would abandon he the theory an function of ficer his constitutional indepen making be determination; would then for his determination dent of the in the officer’s entirely judgment dependent upon an af if he formant’s Similarly, accepted credibility. he would abandon second fidavit meeting prong, informant; then his determination to the function the informant’s would judgment depend entirely upon about facts of the case.” testified Davidson Let it borne in mind that be Trooper warrant, he not relate that, did the search acquiring what was said in in addition to facts Municipal Judge additional faсts Indeed, to mention the affidavit. only orally insufficient, would likewise have been though prior oral be we could had held that an affidavit supplemented whom the search from evidence before the authority judicial However, the General warrant was sought. being Ark. Ann. which is codified as Stat. act an Assembly passed § 1973), and which 43-205 (Supp. provides: “A search warrant issued may by any judicial officer of this sworn to only affidavit before *7 for which establishes the its judicial grounds officer issuance. emphasis]. [Our We commented this in Cockrellv. act supra, stating thus from
“The cited act eliminates consideration unless it to oral is reduced and ac testimony writing affidavit. We have said that for an instru companied by ment to an affidavit it must be ‘reduced to writing and sworn to or before some affirmed person legally to authorized administer an oath or affirmation.’ Thomp 70, son v. 197 Ark. 122 S.W. 2d Self, (1938). It therefore and law enforce important magistrates ment officers take heed 43-205 and their ac govern § tions accordingly.”
It is thus that the affidavit made apparent by Trooper (a Davidson officer) form filled in was insufficient to the issuance of a valid warrant. support additional information was Why not included in the af- fidavit before to the is not being presented Municipal Judge shown, there was am- according subsequent testimony, affidavit, evidence which could ple have been included and which would a valid have issuance of supported warrant. McKee, We refer to the of Kenneth testimony in narcotics for the Criminal Divi- supervisor Investigation sion In the State Police. first McKee pretrial hearing, testified that he had concluded an based on in- investigation, formation received and had located a of marijuana supply hidden in a shed in The officer he stated that had Brinkley. conducted a “field test” the substance in the shed and had determined it that was before the marijuana, marijuana ever He also testified that he picked staked up by appellant. shed, out the and оn December saw the con- Byars place car, traband in the trunk of his and drive He described away. the car and the license number who to Davidson had gave been alerted about of a narcotics already possibility arrest, Davidson, stated, previously stopped search Now, events all occurred these automobile. before facts, or if these even obtained.Needless
warrant was
say,
affidavit,
them,
in the
been included
had
substantial
part
i.e., have
more than adequate,1
such affidavit would
been
statement that such
facts, with the additional
recitation
(instead
officer
from a
obtained
information was
police
have answered the
source”) would
a “confidential
stating
v.
Ventresca,
102;
380 U.S.
v.
UnitedStates
test. See UnitedStates
(7th
1975);
2d
v.
518 F.
& n.1
Cir.
UnitedStates
Spach,
DeCesaro,
1974);
(7th
“The is whether a search can issue thus presented that lawful on the basis of consent when be justified ‘consent’ has been after the official conduc- only given a warrant. the search has asserted that he possesses ting under cir- hold there can be no consent such We that cumstances.
“When a seeks to consent rely upon' prosecutor search, he of of a has burden the lawfulness justify fact, was, in the consent and volun- that freely proving This burden cannot be show- discharged by tarily given. to a no than claim lawful more acquiescence ing in reliance A search conducted authоrity. later be the basis warrant cannot justified result if that the warrant invalid. The it turns out no it turns out the State does be different when that can facts. was not advised these 1It be Davidson may not even attempt rely upon validity was, fact, or show there fails to warrant at all.” .is.,
We think the statement “This burden cannot be key no more than to a discharged claim by showing acquiescence i.e., of lawful we do not take to mean that authority,” Bumper an accused can never deemed to to a have consented search, if a warrant had been obtained and the ac- Rather, cused that fact. was aware of we consider that this is determined question facts when particular present Beto, the consent is In Hoover 467 F. 2d given. purportedly (1972), States United Court (Fifth Cir- Appeals cuit) whether held that consent to search has been given There, of fact. question officer went the home Hoover, knocked, and Hoover answered the door. The officer house; advised hе had a warrant to search the Hoover “that the search vas thereupon, replied, warrant un- (him) to come on in his necessary, house and look (he) wherever The officer had the in his pleased.” door, hand when he knocked on the and Hoover asked to see it after the officer went inside. The state trial court upheld search on the that Hoover had advised it ground that was not to have a search necessary warrant and invited the officer to residence, search the and the Texas Court of Criminal affirmed, Appeals subsequently there was an in- finding vitation Thereafter, to search. *9 Hoover to the Federal applied District Court a writ of habeas which corpus, application denied, was and Hoover to the Circuit Court of appealed A of Appeals. that court the three-judge reversed dis- panel court, banc, trict but on en the court held that the rehearing consent was not because the use of the involuntary warrant. so,
In the court stated: doing to “The Texas rule law was not State prior Bumper the different from which substantially principles State, 1942, In is based. Tex. Cr. Bumper Stanford which R. 2d the Texas court S.W. consent, the Texas relied to find Court of Criminal stated: Appeals a was when party held that has
‘This court frequently the to search had a warrant officers advised that it was statement of the mere party premises a as waiver to ahead regarded all go right nor warrant of the to the right regularity question * * * hand, On the other to the search of consent to that a warrant the officer where the tells party on the no made issue is unnecessary, search * * * turns The is shown. consent question question, con- gives as to whether really on the party point officer in the search, or sent for merely acquiesces Id. warrant.’ under a valid rights legal pursuing omitted.) (Citations 2d 519. 167 S.W. at he had officer told defendant “In after the Stanford, was not necessary a stated that it defendant (he) in the hotel warrant and ‘to have a any place go the defen- \ 519. Court held that Id. at anted go.’ and that the to the search dant had consented to the validity as a of the waiver right object operated here, it is was the situation ap- That warrant. ” differ from those Bumper. the circumstances parent It was out that in ques- then Bumper, party pointed education, who tion was a widow limited year-old sixty-six time, defendant at nor an eventual was not a suspect ex- Hoover was a criminal and while lawyer proceedings, a con- law, was not necessarily in criminal this fact perienced distinction, circumstance. but only trolling denied certiorari. The United States Court Supreme 18, 1972). (December U.S. 1086 Court The same taken by Supreme approach There, also, 464. 496 S.W. 2d Tennessee in Earls v. be in was held to obtained which had been valid, consented to the Earls but court held that validly discussion, out in facts, are set search. The to this pertinent *10 the as follows: opinion warrant, Sheriff Russell
“Armed with the search of the defendant. to the home and five other officers went handed Sheriff The defendant not under arrest. the him the and reading a of began copy defen- to him. As the Sheriff original reading, and ‘You dant to said: threw his the ground copy You search warrant. needn’t to have a brought on welcome to search anywhere my are gentlemen to and want take you you anything premises defen- find.’ this the officers searched the Following it dant’s and torn letter to home took from a love tools, ‘Marsha’; in his found of truck a number they of cutters most which was a of wire pair important determined the laboratories of the subsequently by Federal to be had Bureau those that investigation been used sever a to barbed wire fence surrounding where of the deceased was found.” pond body The court then stated:
“Can a search be lawful on justified the basis consent when ‘consent’ has been after only given the official the search has that he asserted conducting ‘ holds, a warrant? The . . possesses . Bumperopinion * no there can be consent such under circumstances * * — (because) the situation is instinct with coercion albeit lawful coercion. Where colorably there is coercion there cannot be consent.’ The defendant relies this that consent can language support proposition never be under the involved this given case. situation The State that the does not es- argues Bumperopinion Rather, tablish such absolute it con- prohibition. tends that stand, such if allowed ‘would in- holding, validate the . . . well-established rule volun- tariness of a consent to search fact to question decided in of the attendant circumstances light fact,’ trier of relies on from the following excerpt its Bumper contention: opinion support ‘When a seeks consent to prosecutor rely search, the lawfulness of a he has the burden justify was, fact, proving freely This cannot be voluntarily given. discharged burden no more than to a claim of showing acquiescence lawful authоrity.’ *11 therefore, asked, examine and to interpret are
“We its re- to determine order the Bumper opinion is the We do believe that opinion not Bumper quirements. no can ever be given that a blanket prohibition a involved. Such holding an invalid warrant is ig- where the life denies long standing the realities of and nores of a con- voluntariness that existence and the principle to be is a of fact and seizure sent to search question v.White circumstances. in the of attendant decided light States, 1971). crea- (10th F. Cir. 2d United *** with a fiction is inherent tion of such danger. legal the stands for that case “We believe Bumper to it valid consent is to give proposition possible warrant is made existence of the search even after the known, clear and the State must show by convincing but the warrant that the consent is not based evidence It is conceivable other factors. was coerced by uncoerced con- could a voluntary person give he had been informed that to even sent though would but the State the officers had a search that the consent was suf- burden of bear the showing to remove the taint of the warrant ficiently independent coerxivv. .“«cure. its concerns case decided that Bumper “Having forth itself with the brought quantum proof now standard for we must determine prosecution, must the factors that the burden of meeting proof in its The sole indication given considered evaluation. cannot be discharged case that the burden Bumper no more claim than by showing acquiescence lawful authority.
“In case court Bumper emphasized ‘a 66- whom party presented widow, in a rural area old in a house located year Negro Further, at dirt road.’ the end an isolated mile-long — the ‘four white enforcement officers there were law sheriff, and a state in- two of his county deputies, in- —’. The seems to court age, vestigator imply class, and environment are socio-economic telligence, factors be considered in whether consent determining *12 was given.” Beto, discussed,
The in Hoоver was then holding supra, and court the continued:
“Hence, left with no we are statement as to explicit what is to meet the burden. Instead we must necessary make our decision on cir- the basis the simply in cumstances the case law. presented Having facts, reviewed the we are thoroughly opinion Search, Earls consented to the and the fruits voluntarily of the search were admissible into evidence him. against While Earls was not a with extensive criminal ex- lawyer he did nevertheless some have educa- perience, college tion. The record further reveals that he in- in engaged And, vestment of stocks bonds. as was and noted trading above when Sheriff him handed of the copy the defendant threw it to the and ground stated, ‘You to needn’t have a search warrant. brought You are welcome to search gentlemen anywhere my want to search and take premises you anything you find.’ In cases all turns on whether the question par- consents to the search or to ty really merely acquiesces the warrant. In our the facts ‘constitute clear opinion, and evidence of to the convincing voluntary search, of the warrant.’ Earls irrespective validity consented and invited the search. That voluntarily consent was neither coerced nor compelled by case, search warrant. As the court stated in the Hoover The declarations invita- supra: argument express here, consent, tion and such were constitute present ‘more than a claim lawful nothing acquiescence neither with reason and nor authority’ comports logic with human common sense.” experience Petition Earls for Federal habeas relief was by corpus 22, 1974, denied the district court on that court May that it the intent of the consent to holding person giving search, search, and not the intention of those conducting which controls whether the consent was determining voluntarily given. before us?
What are facts in the case stated, First, officers testified that three all Byars effect, a show and embarrass that he did want “cause were was in the that what the officers family”; looking was of the that this trunk of car. The prosecutor opinion obtained, made even the warrant was statement was before rate, but at the statement made appellant appears to have record been and voluntarily spontaneous given. reflects son of Exxon distributor Cotton an Byars, Plant, from Henderson school attended graduated high State for two one-half on the years, University playing It is thus was not football team. appellant ig- apparent *13 unlearned, norant, of or and was suf- apparently possessed the of- ficient to make his own determination that intelligence ficers His that he could search automobile. statement didn’t his to be in desire to “embarrass” ac- family appears cord with his Let another fact be background. important viz., remembered, never, that in chambers or there otherwise, made, any denial of nor con- any statements evidence We have concluded that trary presented.2 Byars’ consent to the search of the car was voluntarily given.3
It is also there was insufficient evidence urged before the to sustain conviction mari- of jury possessing with the intent to sell and deliver. Ark. Ann. 82- Stat. juana § (d) 1973) 2617 provides: (Supp.
“Possession
of a
of
con-
person
any
any
quantity
trolled substance listed in this subsection in excess
herein,
limit set
shall
out
create a rebuttable
quantity
such controlled
that such
possesses
presumption
person
with
substance
intent to deliver
violation of Section 1
(a)
(b) (this section)
of this article.
...”
subsection is
amount referred
in the
subsequent
one
evidence here reflects
ounce of
and the
marijuana,
(1976),
2d 701
2In
259 Ark.
Hock vigorously
Hock v.
S.W.
his
for a search.
given
denied that he had
custody
course,
not invalidate con
the fact that
was in
does
Byars
3Of
—
Watson,
be considered. United States
It is
a circumstance to
only
sent.
(5th
—,
(1976);
475 F 2d
Cir.
Jones,
Statеs
U.S.
96 S. Ct.
United
1973)
denied,
(1974).
cert.
Appellant, evidence was insufficient conviction, stating: there is no
“Definitely, at testimony anyone time saw trunk, the defendant raise the and no lid evidence that the defendant had that the sub- knowledge stance was in the trunk of the car driven him.
“The court will take of the fact judicial knowledge contents of the trunk of that the an automobile is unless the lid to the visible to trunk is raised. anyone “It is that unless fundamental the defendant had that the substance was in the car it could not knowledge that he be held had it in possession.” course, chambers, Of McKee testimony summarized, have heretofore would this answered quickly officer, officеrs, but this nor neither argument, city testified before the Nor did Davidson state- mention the jury. relative to not embarrass his ment Byars desiring family, *14 and that what the officers were for was in the trunk. looking Be that as it Davidson testified relative to the may, stopping car, and and the of the Officer finding marijuana, Neighbors chain of after testified relative the the confiscation custody from the to the of officers Health and Department Drug Abuse While we have no on the cases Laboratory. drug par- ticular made other argument appellant, jurisdictions on the In much Eason v. authority United provide question. States, Cir.), where (9th 281 F. 2d two defendants denied of found of the hidden the knowledge presence marijuana car, held a could from the the court infer jury properly the car had of narcotics in the defendants presence The that some of such knowledge presence. argument car, could have secreted the in the was stranger marijuana the that while could court this have rejected, noting happened, its was not “so reasonable as to possibility patently our an as matter of law that inference knowledge a ruling ”
was not available from the facts of
This
the case.
approach
Dixon,
has been affirmed
times. In
U.S.
subsequently many
denied,
(9th
“ act loaded car simple sub- driving provides [T]he stantial basis for a conclusion of knowledge. [Citation The was not to believe jury omitted.] Dixon’s obliged that, him, unknown to story someone else loaded the car.” Chavez, also P. People (Col.)
See 2d 883 and State v. Potts, 464 P. 2d (Wash.). Here, had control it is that the undisputed appellant — he hidden was in which
the automobile marijuana amount its driver sole occupant. drugs — i.e., form, “bricks” that would its individual recovered plus has in addition to what facilitate sale or already delivery, out, was substantial evidence been sup- pointed certainly the verdict jury. port it is contended that
Finally, the verdict of jury and not corrected before When ambiguous adjournment. retired, the court form jury verdict: gave following defendant, Mac
“We, find the Danny Byars the jury, fix his information punish charged guilty in the State Department ment lb)-years at (not exceed 1. of-or a fine of Correction or (- n i (not (cid:127) (cid:127) 515,000.00) . i >> to exceed . line. both imprisonment verdict, written in first had In returning jury *15 “$5,000.00.” the second blank “6” and blank figure word uses the “or” the verdict form that out points Appellant foreman, verdict, “and.” When this signed instead of meant if the read, jury the court immediately inquired fine, and the 15,000.00 and 6 confinement years both the
175 foreman in- answered in the The court affirmative. further verdict, of all members of the if this was the quired jury all We find no error.. agreed.
Affirmed.
Fogleman, J., concurs. George Byrd dissent. Rose Smith, JJ., Holt, I A. with the Fogleman, Justice, concurring. agree John with Mr. majority warrant Byrd Justice was invalid. I with Mr. that the did state agree Byrd Justice not meet burden its consent. I would add that proving search was not as incident to the See arrest. permissible 42, 1975, 399 U.S. 2d S. Ct. L. Ed. Maroney, Chambers v. 419 (1970). I still would hold that un the search was not reasonable.
In fact that affidavit for the search spite establish failed cause for a properly probable search, there was cause for arrest. probable certainly Byars’ token, theBy same there was cause to search probable contraband, automobile driven him for Ever marijuana. States, since Carroll v. United U.S. S. 69 L. Ct. Ed. 543 (1925), it has been that automobiles recognized may be searched without a warrant in circumstances which would office, the search of a house or that there justify provided is to believe that the cause car contains articles probable the officers entitled seize. are The United States Supreme Court said this Carroll: is, therefore,
“The measure of of such a seizure legality that the officer shall have reasonable or seizing probable cause automobile which he believing stops and seizes has which contraband therein liquor being transported.” illegally
In In Chambers the of Carroll were precepts applied. Carroll, the Chamberscourt said: speaking also Court noted search of an auto *16 176 different cause a theory wholly
probable proceeds search incident to an arrest: from that justifying seizure are “The and the validity right are not on the to arrest. right They depen- dependent officer has for dent on the reasonable cause the seizing offend belief the contents automobile against the law.” was cause that there for the search probable
Finding it, at before the Court affirmed and seizure issue convictions. search,
In cause for a Chambersit was held that probable given it an search of the automobile after had intense wаrrantless not been to the station was unreasonable. A removed police White, 67, v. 423 U.S. Texas Chambers reading light (1975), 209 makes the search 304, 96 46 L. Ed. 2d S. Ct. cause, and the if there an reasonable is automobile probable house office is automobile, fact rather than a or an that an In circumstances. White consent searched, furnishes exigent taken to the refused, and the automobile had been police not un- station The search was conducted officer. by police sta- it had to the til about 45 minutes after been brought house, tion which time the officers were duri questioning g .r of the arrested driv the automobile.
In this case officers took into him custody, Byars put an obtained invalid then took back to jail, Byars automobile, he out in after made the statements set full in seized automobile dissenting opinion, returned to the station both and the automobile Byars police where the search was conducted. It seems me seizure under that the search Chambersand justified аt the station can be contraband without warrant police justified. involved, we have sustain-
Even where contraband based ed warrantless searches of automobiles on probable State, 912, 151; 511 2d cause. See Andersonv. 256 Ark. S.W. State, State, 773, 467; 254 Roach 255 Ark. 503 S.W. 2d Cox State, 802; Ark. 2d Moore v. 244 Ark. 491 S.W. 122.
S.W. 2d 159, 2d S.W. I note that Steelv. Ark. should *17 545, of of a search incident was decided on the basis validity arrest, 752, 395 U.S. 89 S. Chimelv. an California, applying 869, 685, 90 Ed. 2d reh. den. U.S. S. Ct. Ct. L. in (1969). This was before the decision L. Ed. 2d 124 In footnote to that it was out Chambers. a opinion pointed in or affect the rationale Chimel nothing purported modify have, would of Carroll. Steel been decided differently probably Chambers, after or if the searches in Steelhas been considered in the a search incident to an arrest light anything except and a search with a warrant.
I would affirm the judgment. Conley I with ma- Byrd, agree Justice, dissenting. I with the ma- is invalid. search jority disagree to show that the evidence here is sufficient jority opinion of his automobile. consented to search appellаnt Byars case before us show that The facts appellant Byars in the was first arrested on the streets Brinkley city obtained After the officers then jail. placed from the and took him removed jail they appellant warrant was served. On to his automobile where the search 169-170 of Davidson at cross-examination of pages Sergeant record, the occurred: following did the defendant make what statements “Q. Alright there? what that uh I don’t remember
A. just Only request show, he indicated that he didn’t want he did but say He it said ‘what that he wanted to handle you quietly. ’ time and uh he want for is in car. At this are looking this time we all loaded to embarrass his and at family some of- driven to the station his car was up, police car. ficer. I don’t know who drove the or not he was Let me ask sir whether you emphatic Q. his about not to embarrass family? wanting me sir he was A. To emphatic. yes on his that was That seemed to a thing bearing Q. mind? his, a concern
A. It was yes. that the matter con- at that Would say Q. you point whatever сern of his family, family embarrassing them, them, is, term embarrassing worrying right it be was foremost or whatever them may concerning his mind? I know what was I that. don’t
A. couldn’t answer mind. foremost in his *18 the front of his mind? It was toward obviously
Q. sir, in his mind. A. Yes it was was, on that Because he you say, emphatic point? Q. A. Yes. else? Now do remember anything you saying
Q. to the A. No He was not asked sir. anything pertaining else.” case. I don’t recall him volunteering anything written return on the search Davidson made a Sergeant as follows: stating “RETURN I received the attached search warrant 12-27-72 at 10:00 and have executed it as follows: On 12-27-72 in the warrant a.m. I searched the described premises M. and I left a of the with Warrant Danny Byars copy seized. with a for the items receipt together taken is an of inventory property following warrant; to the 38 sealed packages green pursuant
179
con-
matter,
filled
2
plastic bags
partially
vegetable
1
scales,
matter, 1 small
pipe
vegetable
taining
green
colored
orange
pills
1 fuse box containing
(smoking),
foil,
vial.
and 1
in aluminum
small
and 2 pills wrapped
of L.
was mаde in
presence
This inventory
J.
Bethell.
and George
Neighbors
a true and detailed ac-
is
I
that this inventory
swear
on the warrant.
taken
me
count of all the property
on 12-27-72.”
W. D. Davidson
Signed
State,
opinion Hockv.
from our
distinguish this case
To
relies
(1976),
531 S.W. 2d
majority
259 Ark.
Beto,
(5th
1972) and Earls
Hooverv. 1973). There a substantial (Tenn. S.W. 2d In both of those cases and this case. difference between those cases, when home and not under arrest accused at Furthermore, in- both of those cases was made. search instead an volved an invitation acquiescence lawful authority. Beto, the conviction an ex- involved
Hooverv. supra, former criminal mayor Texas lawyer perienced Texas, to the crime Pasadena, as an accomplice City home and told knocked at Hoover’s When the officer robbery. *19 officer, Hoover told him that he had a search come to “that the search warrant unnecessary, [him] Hoover on in his and look wherever pleasеd.” house [he] he constituted that the words spoke acknowledged appeal but enter and search argued: an invitation to the police extended to the “The invitation which appellant his his house officers to come into being searching in- with that allegedly misrepresentation [the presented and a solely was induced by, valid search warrant] of, that misrepresentation. product invita- consent evidenced “Therefore of the been wholly product tion could have free will.” appellant’s clear and
The Fifth after sufficiently Circuit recognizing held as follows: evidence test then positive is when at- “. . own view of . Our testimony Police Officer Sam Hoover told Hodges torney on into was not and to come his home necessary wanted, and this constituted clear search wherever he to the evidence voluntary convincing Hoov- warrant. search, of the of the validity irrespective to and invited search. er consented voluntarily cоerced nor compelled by was neither That consent warrant. declarations search express argument here, consent, of invitations and such as were present to a claim of constitute ‘more than nothing acquiescence reason authority’ lawful neither with comports logic nor with human and common sense. experience herein is
“The dissent filed merely lengthy restatement of the views deci- panel original however, this sion in case. are make We impelled, further elaboration because of of the majority opinion of law what we consider to be erroneous statements in the dissent. fact to the Hoover
“As
alternative
question
having
voluntarily
to the
and,
fact,
consented
search
having
it,
invited
the dissent insists that
v. State
Bumper
North
Carolina, 391
U.S.
Consequently, supra, relied there was an “invitation” to upon by majority, search a seasoned and criminal by lawyer. experienced which the
The next relies is majority Earls opinion upon 1973). There the defendant (Tenn. 496 S.W. 2d him a arrest, sheriff handed copy and when the was not under Earls threw the warrant and began reading original, to have “You needn’t to and stated: the ground copy are to welcome You a search warrant. gentlemen brought and take want to search you on my anywhere premises Court, after Tennessee find.” The Supreme you anything Black’s dissent Bumper a preference stating Justice Carolina, (1968), stated its U.S. 543 understanding North follows, wit: of the decision Bumper for the case stands “We believe that Bumper consent to valid give it possible proposition is made the existence search even after clear and show known, convincing the State must but the warrant is not based the consent evidence that It is conceivable factors. not coerced other and was *21 182
that a could and uncoerced con- person give voluntary sent to search even he had been informed that though warrant, had a search would the officers but State burden bear the that the consent was suf- showing of the warrant to remove the taint ficiently independent of its coercive nature.” Court,
The Tennessee after the conduct of Earls reviewing and his statement when the sheriff started reading warrant, then concluded: original
“. . . Earls consented to invited the voluntarily search. That was neither nor coerced compelled the search ...” warrant. In Hockv. 259 Ark. (1976), S.W. 2d 701 issue was whether the State had sustained its burden of show consent. We there ing out: pointed
“The latest
with reference to
burden
expression
cast
the State to show
upon
consent to search is con-
Carolina,
tained in
v.
North
U.S.
S. Ct.
Bumper
1788,
‘When a
seeks to
consent to
prosecutor
rely upon
search,
the lawfulness of a
he has the burden of
justify
was,
fact,
the consent
proving
freely
This
cannot be
burden
voluntarily given.
discharged
no more than
to a claim of
by showing
acquiescence
lawful
A search conducted in reliance
authority.
upon
a warrant cannot later be
on the basis of con-
justified
sent if it turns out
invalid. The
result can be no
when it turns
different
out
State does not
even
rely
attempt
validity
was,
fact,
warrant,
show
there
or fails to
warrant at all.’
Court,
cited
supra,
Supreme
Bumper,
Judd
States,
1951),
United
(D.C.
‘Searches seizures *22 unreasonable as to be warrant are generally regarded True, the ob- of the Fourth Amendment. violative and be waived on occasion by of the warrant taining may individual; his consent to the search he the may give or consent must be a waiver and seizure. But such and must it be clear and testimony, positive proved by coercion, or ac- that there was no duress established must show a tual or . . . The Government implied. . . and . consent that ‘freely ‘unequivocal specific’ enter Thus ‘invitations’ to and . . intelligently given.’. house, the law one’s extended to armed officers of entrance, considered who demand are to be usually . . . Intimidation and invitations secured force. by in such duress are almost necessarily implicit absence, situations; their it has if Government alleges the of the court that are in burden they convincing fact absent.” Bustamante, 218, 93 S. Ct.
In Schneckloth 412 U.S. (1973), 36 L. Ed. 2d 854 the issue the Court what before consent, the must demonstrate that a proseсution prove arrest, In one not was voluntary. under holding given by that consent did Miranda voluntary warning, require Court, “consent”, with to “coercion” or stated: respect
“But Fourth and Amendments Fourteenth re- coerced, consent not be or im- explicit quire For, means, or force. threat covert no plicit by implied the coercion matter how subtly applied, be no more than a ‘consent’ would resulting pretext intrusion which the Fourth against unjustified police In classic the words ad- Amendment is directed. States, 616, 635: 116 U.S. monition in v. United Boyd it obnoxious ‘It is the its thing may form; but and mildest and least illegitimate repulsive their first footing unconstitutional get practices silent and approaches namely, by slight way, This deviations from modes can procedure. legal to the rule that con- be obviated adhering only for the stitutional security person provisions construed. A close and should be liberally property them of their ef- literal construction half deprives leads to right, ficacy, gradual deprеciation It is in substance. as if it consisted more in sound than to be for the constitutional of courts watchful duty citizen, en- stealthy rights against any croachments thereon.’ reconciling recognized problem of consent searches with the
legitimacy
requirement
of official coercion
be free from
cannot
they
any aspect
be resolved
infallible touchstone. To
by any
approve
would
such searches without the most careful scrutiny
coercion;
of official
ar-
sanction
*23
place
possibility
would
tificial restrictions
such searches
jeopardize
confessions,
true with
their basic
as was
validity. Just
fair
the
of a
consent reflects a
requirement
‘voluntary’
in-
constitutional
accommodation
the
requirements
In
circumstances
volved.
all the
examining
surrounding
coerced,
to determine if in fact the consent to search was
account must be taken of
coercive
subtly
police
as
vulnerable
well as the
subjective
questions,
рossibly
state of the
who consents. Those searches that
person
are the
coercion can thus be filtered
product
police
of con-
out without
undermining
continuing validity
sum,
us to
sent searches. In
there is no reason for
depart
searches,
in the area of consent
from
traditional
”
definition of ‘voluntariness.’
1969),
(8th
The facts consent’ are much supporting ‘voluntary 8, than here. See 391 547 n. U.S. at stronger Bumper 88 S. Court, however, Ct. 1788 n. 8. The has Supreme made clear:
‘When a law enforcement officer claims authori- to search a ty home under a he announces in effect that has no to resist the occupant right — search. The situation is instinct with coercion albeit lawful coercion. Where there is coer- colorably cion there cannot be consent.’ Id. at Ct. at S. 1792. York, 85, 89 Ct. S. 393 U.S. also Overton New
See curiam). 218 (1968) L. Ed. 2d (per for obtaining basis have a An officer must legal under badge access to living quarters private of this The clear law. logic and the authority office of consent reason conducted by rule is that a *24 issued of warrant validly given upon representation was validly itself unless the will not be lawful issued.” line of authorities whether follow you
I submit that Circuit Eighth or ruling cited majority not suf- (1969), there F. 2d 1264 Sigler, McCreary State’s burden to sustain in this record ficient proof — clear i.e. positive to search a consent proving evidence. dissent. stated, I respectfully
For the reasons dissent. Holt, in this J., joins