*1 reach the issue. Bullock did address himself to the quanti- of rice harvested. That in issue. ty Someone question said, has “There’s between many slip cup lip.” Anyone who has ever observed even is well aware farming, remotely, that this has and that is a saying particular application vast difference between and that crop produced harvested.
I would affirm the decree. I am authorized to state that Chief joins Justice this opinion. C. HARRIS v. STATE of Arkansas
John
CR 78-76
Opinion October (In Banc) [ Rehearing denied November 1978.] *2 McArthur, for William C. appellant. Warren, Clinton, Gen., Asst. Williams
Bill Atty. by: Joyce Gen., for Atty. appellee. con- Harris was C. Hickman, Darrell Justice. John receiv- Court of theft in the Pulaski Circuit by
victed County $300.00. and fined ing errors, of which has he three
On only alleges appeal cer- motion to merit: we defendant’s suppress agree the use of defective tain evidence obtained by warrant should have been granted. warrant defect- noted that the search
The trial court officer failed ive or insufficient in several the judicial respects: a search and that would have authorized make finding Proc., 13.2(c) Rule or seizure Crim. night day [Rules Harris was not delivered to (1976)]; describing his Crim. seized from residence listing [Rules Proc., and, executed 13.3(d) the return was not (1976)]; Rule Proc., (1976). 13.4 as Rules of Rule Crim. by required to be appeared commented The trial judge but, ...” rules. for the of a total . much disregard . pretty the motion suppress. overruled no finding prejudice, omissions, errors, the cumulative We find on review that and affidavit warrant require and deficiencies this search insuf- the warrant must fail as us to conclude that legally ficient. in the warrant were several deficiencies
There flagrant warrant, First, issued the Sherwood and affidavit. by
393 Court, did not to be searched Municipal specify by place Proc., particularity required with the law. Rules of Crim. at a residence located (1976). It (b) 13.1 searched, no with mention to be Lane was Republic residence was located. where this or other the city place out, to one is identical As turns the address occupied could have in southwest Little Rock. It conceivably error alone elsewhere Pulaski Such County. been might tolerant of dis reversal we are because quite require Gatlin v. description regarding property. crepancies State, (1977). 262 Ark. 2d S.W.
Second, the officer the search warrant issuing no made the warrant could served finding or day *3 (Otherwise, a warrant must be served between night. the hours of six a.m. and Yet there was evidence that eight p.m.) the officer arrived at Harris’ residence before six a.m. The first State’s witness said the officer arrived about five a.m. Later for witnesses the State swore it was after six a.m. Good cause must and be exist found the officer to issuing exist to authorize into a citizen’s in entry the privacy night time. This is a centuries of abuse. safeguard justified by
Third, Harris was not a for seiz- the items ed as Proc., the Rules of Crim. required by 13.3(d) (1976). trial, In this the of the stolen authenticity items became critical. Harris was convicted of of a stolen possession television set. The officers testified that a television set was taken from Harris’ home warrant, to the search pursuant and office, stored in the sheriff’s later tagged and delivered to its owner. Since Harris was not a for television given receipt set nor for other innumerable items taken from his home as Rules, the the required by of credibility State’s case became an If issue. Rules, officers had followed the it should not have been an issue.
It seems that the affidavit used here to obtain the search warrant of Harris’ residence was also used as a basis several other warrants. The officers conducted several searches that same and confiscated a considerable am- night of individuals, ount from other and at the same time goods collected all these items and delivered them to the sheriff’s of- fice. items, With these numerous taken from various places, able to for it to be say to case for the State
became critical fact, in had alleged with confidence that possessed fact, court orders to obtain two (In Harris had stolen goods. to to return the sheriff’s officers from trial judge ordering time his home. the same from items seized at him numerous in this regard.) would have alleviated any problem A receipt return of the Fourth, an invalid there was ordinarily not critical. warrant, alone which is discrepancy State, (1977). S.W. 2d 205 v. Ark. Shackleford to considered when examining more deficiency just as a whole. the warrant’s credibility legality erroneous And, the affidavit was admittedly finally, affidavit that four con- several separate regards. informants, to who had be reliable fidential proved that Harris had the sheriff’s office had informed illegal past, fact, informants were able In two these say goods. at all with Harris. The under oath any dealings out, inform- error. As it turns these four conceded this State some were all ants working together burglarizing places affidavit, efforts, were minimal. One in the their praised informants, infor- to have who was alleged provided malefactor, re- was actually mation the arrest leading witnesses even- of the State’s to his own arrest! One ferring to obtain the search affidavit used conceded that the tually *4 it that four inform- warrant was incorrect because of activity had information regarding ants illegal supplied whereas, fact, informant in essentially only information. provided omissions, errors and In there were summary, many too warrant related to this search to deficiencies in this and give us in its correctness or confidence any regularity. to searches do not exist Our rules merely governing — sake of form exist so that technicalities for the provide when an a can rest assured that officer produces people executed, cause, it with search warrant is ap- good properly to officer and attempt proved by improper judicial of one’s or home. invade person protective sanctity it Procedure When we the Rules Criminal adopted was our in- and desire we would those hope provide concerned, concise, terested and those correct set of rules searches, seizures, and, set forth the governing general of criminal law. The Rules should be procedural aspects common to law enforcement officers and knowledge officers who have the and authorize duty responsibility searches. The forms and procedure quite elementary, adherence to which will save concerned a deal everyone good time, and, sometimes, money, anguish.
It be that alone the in this case might discrepancies would However, not amount to error. when con- prejudicial sidered we much conclude together, almost total dis- Rules cannot be What regard all comes ignored. down to is where do we draw the line? drawWe the line here. has State not demonstrated that a faith reasonably good effort was made to is, with the Rules. The comply evidence fact, to the contrary.
We find in this case such an accumulation of errors us to reverse the of the trial court re- requires judgment mand the case for a new trial with the direction that obtained the use of the goods search warrant in through ques- tion not be used Harris on may similar against charges.
Reversed and remanded. Fogleman, C.J., dissent. J., A. The rule Fogleman, Justice, dissenting. govern- John is motions evidence Criminal Procedure ing suppress (e) 16.2. is Subsection here. applicable provides: Determination. A motion to shall evidence suppress if the court finds that the violation granted upon substantial, which it based was or if re- is otherwise or this Constitution of United States quired by In state. whether violation substantial determining *5 circumstances, the court shall consider all the including: violated; (i) the of the interest importance particular (ii) conduct; the from lawful extent deviation willful; (iii) the which violation was extent to the invaded; (iv) the which was extent to privacy will tend to to which exclusion (v) prevent the extent rules; of these violations violation, the seized whether, for
(vi) but the things discovered; would have been the the to which violation (vii) the extent prejudiced motion, or to his ability support moving party’s in which the in the himself defend proceedings him. to be offered in evidence against seized sought whatever is no No court found regard The trial prejudice. to that the majority. finding the The we court was I cannot see how can say wrong. not have been Chief Deputy address could misleading. testified that there is only Tax of Pulaski Assessor County the said The first of violations the Lane county. Republic viewed is a violation when to be cumulative only was not hypertechnically. certainly prejudicial. arrived at one witness that the officers The statement of at 5:00 a.m. is taken by majority address apparently of the an to constitute overwhelming preponderance Thomas, one of those arrested evidence. charged Phillip with the with the thefts that were connected against charges the search the officers on said that he accompanied 7:00 house between 6:30 and and that went to they was search a.m. Sheriff Stan Chase that the positive Deputy it in same of time 6:00 a.m. He was after placed range was did. Woods also said the search that Thomas Sgt. Rocky a.m. Bill Watt initiated 6:30 and 7:00 Sheriff between Deputy and 7:00 at as 6:45 the time of arrival the house between put at started 5:00 a.m. tried to say Appellant a.m., the officers said he at the clock when but he looked and was were he was run out the bedroom finished and been stuff out 6:20 a.m. He said that carrying the first witness to be for 15 or 20 minutes. Only by finding can it said the rule credible one against 6:00 a.m. violated. That is not matter searches before error, said to be one of this to determine. The second court ones, to the cen- contributed alleged cumulative nothing of which the claims some special turies abuse majority at all. It was not error knowledge. *6 Harris. But have been
A should Deputy made an testified that he inventory Sheriff Bill Watt and that he taken at the Harris house tagged property property. error relates to the return. Neither
Another so-called affidavit, return abstracted. search warrant nor the Ap- in the state’s relies the statement the majority upon parently, is not in line with brief that return statutory strictly in line? Is How was it not strict strictly compliance language. execution of search with for issuance and every guideline warrants to be rule indicates required? quoted quite i.e., sufficient that substantial contrary, compliance that evidence is not to be because hypercritical suppressed review bench from sees retrospective should been done better. I submit that there is no basis have whatever for that the trial erred in his saying judge ruling. I am authorized to state that Chief Harris joins Justice this opinion. ARKANSAS STATE HIGHWAY COMMISSION
v. Thomas Nelson et ux SCOTT 78-67 2d 607 S.W. delivered October
Opinion (Division I)