*1 Arkansas STATE of William Thomas HAYNES 2d 602 S.W. CR 80-62 Arkansas Court Supreme July delivered Opinion August denied Rehearing *2 Defender, Schay, by: E. Appellate Alvin State Jackson Defender, Jones, Deputy Appellate appellant. for Clark, Gen., Fewell, Atty. by: L. Asst. Atty. Steve Victra Gen., appellee. for Appellant was convicted of I., Purtle, Justice. John
possession marijuana, possession of LSD with intent deliver, $1,000 and delivery of LSD. He fined and year jail to one marijuana charge sentenced on $15,000 fined Department sentenced to the of Correction 20 years jail two The time charges. on each of other which merged Department with Correction sentences consecutively. were to run
On appeal appellant urges three points (1) for reversal. The court failed to grant appellant’s suppress motion to cer- (2) tain evidence. passion sentence resulted from prejudice and cruel (3) and unusual. The trial court fail- ed to appellant pursuant sentence to the Youthful Offender’s agree Act. We appellant’s with disagree first contention but with the arguments. second and third
Appellant with lived his father in Apple *3 Harrison, Valley Arkansas, Inn in at the time the events con- sidered here occurred. persons occupied Other room 116. The suspicious became that drugs being were dis- tributed from the motel and began investigation. Ap- parently, room 116 traffic, received most of the visitor but there was some testimony people that several were in and 114, around and rooms 115 also.
About p.m. April 23, 8:00 on the officers decided to make purchase a controlled through a reliable informant. The officers moved into an observation post they from which them, observed people five known plus several more un- them, known to in and around room 116. Detective Post stated:
Well, over, and, they all there were were cars there and I they can’t what kinds of cars were and all remember these individuals and going were outside inside room standing talking. back and forth and outside Sergeant Lucas testified that he observed the informant arrive on the at 11:00 approximately p.m. scene and that he the appellant emerge up saw from room 114 and strike a con- versation with informant in parking Shortly lot. thereafter, the informant and the appellant entered room minutes, they stayed where a few and the informant left. The informant that in reported buy- later he had been successful silent, ing drugs appellant. Although it the record is apparent that the 116. purchase completed was room were he observed people testified Lucas further he saw people 114. All in room or 116 not but room 115 testified 116. He also from room departing were arriving and 116, the left room appellant informant after the with he resided where to room returned appellant father. area; time to secure then
The decided officers down and kicked command, the motel charged and, they on only vacant and 116. Room 115 door of rooms 115 discovering 116. room After were people two room, to room they proceeded in neither appellant and without permission without entered they where time, attempting to ob- were At warrant. other however, three warrant, approximately it took tain a search meantime, warrant arrive. In half for the and a hours of his own room father out appellant’s moved the officers until warrant arrived. him in the search placed room 115 114 for stayed room least officer inside and at one Appellant half The officers admitted three and a hours. approximately they 114 as were room permission did not have enter friendly circumstances. there under not dispute evidence is in what oc- considerable about curred while the waiting officer remained *4 warrant, and it when if the appellant is uncertain or was arrested. Officer Post stated: arrest,
I did they not tell them under did ad- were but I vise rights. the defendant of his This was when I walked into 114. I if asked Officer Hutchinson defen- dant had said anything, he said he had not.
The officer testified after a of considerable amount appellant finally only discussion the he drugs stated were in had a dresser drawer and that went to the appellant drawer, it, opened got dresser a container with mari- juana canister, in it. opened The officer looked and saw marijuana, appellant replace and told the drawer. arrived, a.m., After the search warrant about 3:00 and, possession marijuana again, took also dis- LSD with a $58. covered market value of
The question crucial to be by considered the court is whether the evidence seized should have been supressed.
Arkansas Procedure, Rules of Criminal 10.1(a), Rule states:
“Search” any means arrest, intrusion other than an by an officer under color authority, upon of an individual’s person, property, privacy, or for the purpose seizing individuals or things or obtaining information in- spection surveillance, or if intrusion, such in the absence legal authority consent, or sufficient would abe civil wrong, offense, criminal or violation of the individual’s rights under the Constitution of the United States or this state.
It quite seems clear that there was an intrusion into appellant’s place of abode at the time this Since “seizure.” legal authority intrusion without in- is a violation of one’s rights dividual under the the United Constitutions of States Arkansas, in- illegal the state of this visit to an amounted 10.1(a) nothing or Rule an ex- trusion search. more than planation meaning of a of the word ob- “search”. viously acting authority were under color of and were on the appellant’s property seizing for the individuals or purpose of in- things. question There is no there no consent trusion. Procedure, 14.3,
Arkansas Rules of Criminal Rule states:
An officer who has reasonable cause to believe that vehicle premises or a contain: in imminent of death
(a) danger individuals or serious bodily harm; or *5 burn,
(b) things imminently likely explode, to or harm, death, bodily cause or substan- otherwise serious tial property; or destruction subject
(c)things to which will cause or be used seizure
[511] if their seizure is bodily harm cause death or serious to delayed; warrant, and search such enter a search
may, without therein, the vehicles, persons the and premises death, bodily the of such necessary prevention for extent harm or destruction. as emergency
It clear that this was not quite always construed rule. We have by above-quoted defined the home, entry prohibit into one’s the Fourth Amendment reason; exigent cir warrant, except, any without in allow a warrantless have determined to cumstances been an intrusion is such exigent trusion. circumstances Absent York, 100 S. Ct. U.S. Payton v. New permitted. not 445 the any constitu (1980). provision We do not believe 1371 doors, down a warrant to permits tion officers without break individual, him for and to detain premises to enter the of an Using warrant. an old waiting while for a search several hours cliche, castle; and, it should be free man’s home is his outsiders, and its offi by including government intrusion Supreme Court has confirmed cers. The United States home is the chief illegal entry person’s into a statement United States evil the Fourth Amendment. guarded against Court, (1972); McDonald v. United States District U.S. (1948). States, v. United U.S. 451 York, v. New
In U.S. 100 S. Ct. Riddick (1980), York, companion Payton which is a case to v. New police held that when the entered a residence supra, was evidence, the evidence without a warrant and seized thus ob- Riddick, Payton the trial tained In was inadmissible. both evidence appellate suppress and the court refused to court Payton police in In knocked on obtained these two cases. and, door; in response, his when there was no knocked spent cartridge plain and seized a which was view. door and, door; police In knocked on his when Riddick’s case door, young opened sitting saw Riddick son bed, residence, per- him. Before entered his arrested dress, they opened him a chest of drawers and mitting paraphernalia and related which resulted found narcotics arrest and aided his conviction. Both of these Riddick’s *6 It Supreme Court. by the United States cases were reversed Amendment, applicable made held the Fourth that Amendment, police prohibits by the Fourteenth the states entry into a a and nonconsensual making warrantless felony arrest. in make a routine home order to suspect’s York, New Payton supra, the Court opinion of following York, by supra, represented v. New is and Riddick statement:
It a law” that principle of Fourth Amendment “basic a a warrant searches and seizures inside home without Yet well- presumptively are unreasonable. is also weapons or objects settled such as contraband public place may by found in a seized be property plain a warrant. The view without seizure privacy presumptively no invasion of and is involves reasonable, assuming probable there is cause to activity. The associate the with criminal dis- property open a warrantless an area tinction seizure between private premises plainly and such seizure on States, US v. United Leasing Corp. stated G. M. 338, 354, L 2d S Ct Ed 619:*** It the matter controlling is obvious that this case is on before us at this time. statutory right
We know of no or other which enables take the action which was Officer officers to described Hutchinson when he stated: him
I told that he was under arrest for the sale of a con- him trolled substance and advised of his constitutional Miranda, until rights, per and seized search warrant could arrive.
Certainly, seizing the room is as much of invasion of privacy searching Admittedly, the room. there was no as therefore, warrant; and the prior the search seizure receipt the warrant were not authorized. say
We are from the record that the sentence unable to it was clear or or that passion prejudice a result Also, out that point we trial court’s discretion. abuse *7 Act, Ark. Stat. Ann. § the Youthful Offender’s 43-2339 of that we find no abuse 1977), discretionary, and (Repl. is discretion.
Reversed and remanded. JJ.,
Fogleman, C.J., George Stroud, Rose Smith dissent. part. I Justice, dissenting A. Chief Fogleman, John marijuana the accept holding that the seizure of
could a search and result an this case the of unreasonable was seizure, the LSD agree that the seizure of was but I do not a It was the fruit of search. result of unreasonable the officers were to warrant which unable pursuant a search there a after knew produce to until hours 34 in which it was a the motel room for search of probable cause at restrained The who the scene found. remained admirably questionable episode except themselves the circumstances were relating marijuana. Perhaps to the warrant, a exigent permit to a search without but not so as flush right did a Haynes not have constitutional Yet inventory of LSD down commode. this is remaining majority That opinion. effect of the is the unarticulated way pur- that the successful search only can be said a warrant the fruit of an unlawful intru- proper suant sion. majority that the matter, it me
In seems viewing of reason- independent determination making its to the search, weight no whatever given has ableness reasonable. the search was judge that finding of the trial York, v. New New & 445 Payton York Riddick holding (1980), 1371, upon 2d relied 573, L.Ed. U.S. 100 S.Ct. 639 63 in the made absence strictly limited to arrests by majority of its spate all the Throughout exigent circumstances. century dealing with during past quarter decisions light in the requirements the Fourth Amendment warrant word, amorphous what called has been has con- “reasonableness,” Supreme Court the United States 514
sistently recognized an exception to the requirement warrant in exigent circumstances, both in cases where a search was sustained as reasonable and where suppression required because warrantless search or seizure was unreasonable. See, e.g. States, 10, v. United 367, U.S. 68 S. Ct. 333 92 Johnson L. (1948); Ed. States, McDonald v. 451, United 436 191, U.S. 335 69 States, St.Ct. L.Ed. (1948); United 451, 93 U.S. 153 335 69 191, S.Ct. (1948); L.Ed. United Jeffers, States v. 93 153 342 48, 93, U.S. 96, S.Ct. (1951); 72 L.Ed. v. Hayden, Warden 59 294, 1642, U.S. S.Ct. 18 (1967) 387 87 L.Ed. 2d Katz v. 782 States, United 347, U.S. 88 507, S.Ct. L.Ed. 2d 389 576 19 (1967); Chimel v.California, 752, 2034, U.S. S.Ct. L. 395 89 23 (1969); Ed. 2d v. Maroney, 42, Chambers U.S. S.Ct. (1970); 26 L.Ed. 2d Coolidge Hampshire, v. New *8 2022, U.S. (1971); S.Ct. L.Ed. 2d Mincey 91 v. 29 564 Arizona, 385, 2408, U.S. S.Ct. (1978). 437 L.Ed. 2d 57 98 290 In Payton, the specifically recognized court that a different might result have exigent been reached had the state found circumstances, Riddick, which arguably existed. In there was no suggestion Warden, of exigent In circumstances. it was said entry that neither nor is invalid where the exigencies of the situation by the of course action taken the police make imperative. The fact that the the place contents of to be searched might again never be found is a pertinent considera tion in determining the police the reasonableness of action. v. Maroney, supra. universally See Chambers It recognized that danger evidence, of particularly destruction con traband, is one important most factors considering whether the were sufficiently exigent circumstances that ac Santana, tion a without warrant is reasonable. See United States v. 38, 2406, U.S. (1976); 27 S.Ct. L.Ed. 2d Cupp 96 49 300 4 412 Murphy, 291, 2000, U.S. S.Ct. L.Ed. 2d 36 (1973), and cases cited. above in this case. exigent circumstances was evidence of There Haynes. The of- for the arrest of cause probable There the con- purchase informant to for the arranged who ficers immediately to ob- proceeded Haynes trolled substance trooper, the state informed warrant and tain a search governing of laws the enforcement Hutchinson, specialist great that a that he observed Hutchinson said narcotics. leaving and he many were were involved many people losing risk running serious were that judged out drugs get on having dangerous other evidence present still he the officers street, he so decided had to gone that after he He the area. said should “secure” 115, to room proceeded he to room Lucas Sgt. 116 and it, identified knocked on 114, ajar, the door he found where to officer, speak that he wanted and said as a himself investiga- drug for a he there and that Tommy Haynes “I that, saying, hearing after voice said Hutchinson tion. want?”, entered the he you Tommy Haynes. What do am per- two younger if himself, and room, asked identified and, receiving affirm- Tommy Haynes upon there was sons asking for identification response, ative confirmed he that when Haynes testified driver’s license. person’s He himself, step him to outside. Hutchinson asked identified an in- conducting he was that Hutchinson stated said that he the area and and had to secure vestigation come According to go ahead.” responded, “Okay, (Haynes) a con- Hutchinson, Haynes under arrest for sale of he placed rights a few minutes him of his and advised trolled substance Hutchinson said basic Post arrived. later when Officer and prevent- individuals under arrest putting the concern was of the evidence. any disposition further ing State, In Freeman v. Ark. S.W. 2d we exigent had failed show circumstances held that state justify the warrantless seizure of an We said automobile. *9 was any that there was no evidence that there danger that automobile, in an from which the accused people was taken arrested, the vehicle might premises when remove issued, a that if that did danger before warrant could but be officers, exist, why appeared no two other than reason those present who were when who made arrest but the arrest made, guard could not have maintained a sufficient was why prevent' the removal of this evidence or additional officers have to lend assistance could not been summoned a that respect. recognition This was clear circumstances that might by subsequent were so exigent not become developments. case,
In a it that recognized narcotics has been once the accused, recently making who had made a sale to one a “con- officer, buy” arranged by trolled an undercover saw the police, there awas realistic expectation delay that a would only result destruction of the evidence. United States v. San- tana, a supra. There warrantless arrest search were found reasonable. In Michigan Tyler, v. U.S. S.Ct. L. Ed. (1978), 2d 486 pointed court out its decisions had recognized that a entry warrantless by criminal law enforcement may legal be where compell- there is ing need for official action and no time to secure a warrant. The inquiry is a dual one—whether the actions of officer justified were in their it inception and whether reasonably related in scope to the circumstances which justified the interference place. first Cupp Murphy, supra. A warrantless “search” must strictly be circumscribed by the exigencies which justify the intrusion. Mincey v. Arizona, supra.
In this clearly case the evidence showed that there were exigent support circumstances to the action of Hutchinson. A general rather exodus premises from the motel among frequenters of room 116 its environs commenced after the whose, Hutchinson, buy. It apparent controlled became ex- pertise ignored, as narcotics officers is not to be there probability join a reasonable that Haynes would the ex- odus, inventory with without remaining or his of LSD. If he it, undoubtedly it surface on the street. If would he did took not, strong there was a that it likelihood would have “gone certainly down the There was a expecta- drain.” reasonable destroyed, that, event, tion that any evidence would or be would never if found the arrival of a be search warrant was certainly awaited. It was reasonable to believe that there was a compelling need for official action in the form an arrest and “securing the area” intended search. There was certainly a basis for that the finding actions of officer were justified in their inception. carefully Hutchinson limited the intrusion actually not conducting evidence (contraband) warrant arrived. There until the search for a evidentiary finding basis that he did not extend in- beyond trusion the scope reasonably related to the initial in- *10 tereference.
In totally its independent determination of the action, reasonableness of the officer’s majority ig- has
517 respectful give review. We should factor of that nored basic con the trial court findings consideration conflicts. evidentiary in the resolution of weight siderable Osborn, 293; v. 314, 2d State State, S.W. 244 Ark. v. 425 Harris the trial accord 554, 2d We should S.W. Ark. 566 263 139. them we will overturn not weight such findings court’s clearly preponderance against are unless 515; 388, State State, S.W. 2d v. Ark. Degler evidence. has majority that the Osborn, respectfully I submit supra. v. I do the trial court. findings no consideration given finding can trial court’s how it be said not see evidence. This deci preponderance clearly against growing dissatisfaction nothing will counter sion do exclusionary with the rule. the judgment.
I would affirm George Mr. I am authorized to state that Justice Rose Smith join in opinion. and Mr. Justice Stroud et R. et al Mabel ALLEN al RANKIN James 602 S.W. 2d 80-24 Court of Arkansas Supreme July delivered Opinion
Rehearing August denied