*1 the appellee’s are insurance carrier against assessed limits, its its up the amount of dam- pay, failure from, legally is entitled to receive ages the insured motorist, is before it determined uninsured uninsured, or he is legally motorist is liable is or amount of insured entitled damages pay, receive, or the amount the uninsured motorist case, in this obligated pay, whether particular fourth the uninsured motorist or the defendant party damage. caused the $8,000, I

I would sustain the judgment as to fees. reverse penalty attorney’s would Bobby Glenn FERGUSON and Martha

v. STATE of Arkansas 458 S. W. Opinion delivered October *2 Sloan, L. for appellants. James General; Wilson, Purcell, Mike Asst. Attorney Joe Gen., for Atty. appellee. George appellants, Bobby The Smith, Rose Justice. Martha, and his were charged Glenn wife Restaurant at Country the Town & having burglarized Both were found guilty. on August Fort Smith years The sentenced the husband twenty-five jury criminal, as a habitual wife imprisonment, imprisonment. years appellants The twelve urge two reversal, as we points inasmuch find a new we need discuss those necessary only assign- trial arise another again during ments of error that are apt trial. in the case concerns the

The most serious question city that was used of a search warrant validity police defendants’ apartment Fort Smith, where certain articles were incriminating found. The vital .question whether the affidavit search warrant sufficiently established probable cause for the search. aAs for our background discussion of issue it will be for us to necessary narrate pertinent facts in some detail. of the Town manager Country & Restaurant it at about p.m. evening

dosed and locked 10:30 later, at 1969. A hours about March few Sunday, Pound, a.m., a baker employed 1:00 Norman door, restaurant, unlocked the arrived premises, food for the went in to begin preparation next Pound the restau- business. discovered day’s *3 He ar- police, rant had been entered. called the who rived promptly. been the removal of a

Entry gained by piece had metal from the outside of the and the building siding the removal of a inside of panel plywood had wall. In the restaurant an safe been upright partly when, surmised, it or bur- opened, may burglar A sufficient glars frightened opening had been away. a layer had been in the safe to of asbestos expose made and cement fine of which were scat- filling, particles tered about the floor. tools still Among burglary hammer, hammer, a the scene were smaller sledge wrench, a crescent a Samsonite long-shank punch, tools, other and a half-inch suitcase electric containing drill, brand, serial number It was bearing Skil not shown at trial were found. any fingerprints

The officers checked the cars in the vicinity. At a motel, nearby within sight of restaurant, they found a Chevrolet El Camino parked in a breezeway. Accord- ing to the proprietor motel, the El Camino did not belong to anyone registered there.

An El Camino is a two-door, one-seated vehicle, designed to be used both as a passenger car and a pick-up truck. The windows of El Camino were down. Simply by into looking the vehicle the officers observed two electric drills and two pairs on gloves, shaken, floor. The gloves, upon being appeared have them a substance similar to the asbestos or cement material that came from the safe. That material flaky tends to cling clothing. officers left one of

Upon leaving premises their number watch the El (which Camino proved to be the name of the defendant registered Ferguson’s mother or At about mother-in-law). a.m. the Fergu- 2:30 sons drove to the motel in a Cadillac car. Mrs. up Camino, El into the and the Ferguson got two vehicles drove away. who watch- the officer notified

The police, a few blocks. cars within the two ing, stopped of their activities same version gave Fergusons were ever since. They adhered to to have seem they Fort Apartments the Mumey temporarily living house the city. They while were they buying Smith Arkansas. the pre- On at Jacksonville, been living had driven to Jacksonville, spent had night they ceding there, of their up some packed in their home night in Fort apartment took which belongings, Smith. *4 had left El Camino absence they

During Williams, who was staying David a man named with to who going Motel and was Country the Town 8c at the house which the Fergusons some make repairs returned from the Fergusons were When buying. Jack- in the they early morning, to their apartment sonville need the El would Camino that Mrs. Ferguson decided That, in the next in to work morning. use going to substance, im- of their activities their explanation was to motel. their return mediately preceding the two cars and ques- officers stopped When he said that owned one Ferguson tioned couple, Camino, did he not own drills in El driving the El gloves. Ferguson, drill or other Camino, was taken police headquarters ques- time, tioned for a after he which was released. short When was taken to Ferguson Mrs. headquarters back to apartment started the Cadillac. Officer Adams followed to the her Mumey Apartments, another officer was already where waiting, gone having request a response radioed Officer Adams. with entered the two officers Mrs. Fergu- apartment son, who denied the trial in- she voluntarily vited them in. The officers looked around the apart- two, ment for a minute or themselves no satisfying saw number accomplice present. They of tools in the some drills and apartment, including keyhole saw. trial, to Mrs.

According testimony at the Ferguson’s her when husband returned a time short later police the two of them headquarters, went down examine the El Camino more In a carefully. compart- seat, visible, ment behind the not readily they found box empty slip paper it. took the They in. box to the up apartment and left it aon bureau.

Before on noon that same arrested day police both the Fergusons upon At charge burglary. time hair, some examined the Fergusons’ eyebrows, clothing, shoes for particles similar those safe, came from the but nothing was found. It certain from the record whether those examinations were made when the were first Fergusons stopped the street or after their arrest. Brooks,

At about five o’clock that afternoon Officer awith company deputy prosecuting attorney, applied municipal judge Fort Smith a search war- rant search the Fergusons’ We apartment. quote affidavit in full:

AFFIDAVIT *5 A.M., At 18, approximately Monday, 1:00 August 1969, Adams, Mr. Harold entered the employee, Restaurant, and Town 8c found that Country had been an to break into the safe in attempt office. The metal door had been covering back, some of the peeled asbestos had been filling There stripped away. large suitcase and wit, 1, drill, tools inch burglar present: electric V2 bits, numerous drill a sawed-off sledge hammer of (etc). point entry was in building the rear of the at the Northwest building corner. Mr. Adams didn’t see Police arrived anyone. and searched the immediate scene and didn’t find any- Camino, one. Police found El Chevrolet color, ABC617, Maroon 69 Ark. on the parked south side of the Town & Motel Country direct view of the about 100 point entry, yards away, drills, in the Two electric breezeway. were observed El inside the Camino and also two pair of gloves. It was then placed under police surveillance. At A.M., Cadillac, approximately Bronze 2:45 ZF4514, 69 Oklahoma with two occupants, Bob and Martha Ferguson drove Ferguson, Martha up. into the El got Camino and turned north on Tow- son Bob following Ferguson Cadillac. De- tectives and Brooks Armstrong stopped the Cadil- lac. Mr. admitted Ferguson ownership one (1) drills, but denied that the other drill and gloves were his. Ferguson that he and explained his wife had out gone A.M.; of town at 1:00 approximately 17, 1969, Ark., Sunday, August and Jacksonville, had El parked the Camino a' Town 8c Country Motel because he didn’t have room to it at park 18, 1969, his residence. Monday, August Armstrong Milow_, custodian, Brooks questioned the Town employed 8c Motel Country and he stated that he saw Mr. and Mrs.

bronze Motel, Cadillac the Town 8c Country P.M., Sunday afternoon at approximately 1:00 Au- A.M., At gust approximately 11:00 Mr. Ferguson was arrested at his residence at 405 South 14th Apt. De- brought Police Street — where partment he was booked for investigation *6 Burglary. large At the crime scene a amount of as- filling bestos which is insulation material con- safe, tained in the was found on the floor of the tendency office. This cling substance had a clothes, shoes, etc. A substance similar to this appearance gloves was found on the that were found in the El Camino. grounds

WHEREFORE, the affiant has reasonable believing that Mr. was involved in for Country burglary of the Town & Restaurant clothing parti- his and shoes will contain and that filling clothing this and that cles of asbestos apartment shoes are now concealed at No. 14th Street. South

/s/ Det Eddie Brooks foregoing basis of the affidavit the munici- On the judge pal search warrant. In the warrant issued a ‘‘Burglar’s tools, were described as articles to be seized clothing burglary were used in the and shoes which Country August 18, 1969,” on Restaurant Town and though nothing in fact the affidavit contains to indi- burglar’s belief that tools would cate the affiant’s apartment. found at the Fergusons’ apartment to the warrant

Pursuant principal found, articles was searched. which were objection, introduced at the trial over the defendants’ empty printing there were an box which that the box had contained a Skil brand drill showed with the identical serial number as that on the drill burglary; slip scene of the also a found at the a sales long-shank punch similar to the one found At the trial a salesman at the store where the scene. slip originated thought that he sales testified he had punch Ferguson, he sold such a was unable to identify Ferguson certainty. In the search at the any clothing apartment the officers did not find having particles similar to those that shoes dust came premises. burglarized Supreme States the United decisions Recent upon limitations strict comparatively placed Court have In warrant. a search to issue magistrate of a the power court held Texas, (1964), S.U. Aguilar af- contain must warrant the affidavit magistrate from which of fact allegations firmative whether for himself decide may independently *7 mere Affirmations for the search. cause probable facts, belief, supporting without adequate suspicion v. United in Spinelli More recently, are insufficient. an States, the court interpreted 410 (1969), U. S. that of fact statements by disregarding strictly affidavit well as to as innocent interpretation to an were open instance, There, court for the gave one. incriminating a book- to the fact that suspected no whatever weight operation had because telephones, two maker’s place in this petty himself indulges a householder “[m]any luxury.” reasoning the Court’s Supreme we apply

When bar, say we are unable to in the case at the affidavit the cause assertion probable that the officer’s more than We suspicion. rested upon anything search warrant authorized the that the search fact disregard tools, because affidavit was search for burglary and set actually such a search a view to drafted with indicate Fergusons tending forth no facts in their tools apartment. had such

There remains the asserted affiant, belief of Brooks, Officer that Ferguson’s “clothing shoes will contain of this particles asbestos and that filling that clothing and shoes are now concealed at” the Fer- gusons’ apartment. In weighing facts in contained affidavit, we think it essential to consider them which, with other facts along to the according evidence adduced at the hearing upon the motion to suppress evidence, the State’s were known to the affiant when he sign-.-d the affidavit. other rule Any would encourage overzealous officers to conceal known facts an effort ¿ssue to persuade the magistrate requested warrant. record, in the the officers

According proof in- were alert from the outset to the possibility from the dust safe criminating might implicate Brooks, affidavit, Officer who made Fergusons. testified that when he first saw the after Fergusons officers, their cars were stopped by again station, hair, police he checked their clothing, eye- brows, dust, he and shoes telltale found nothing. Moreover, the officers apparently examined both the cars during there is investigation, yet no suggestion incriminating dust was found it is Finally, either vehicle. not without significance that unfounded, the affiant’s suspicion proved wholly that no traces the dust were found the Fer- upon or shoes as a result gusons’ clothes of the search. It is our conclusion that meager facts recited the affidavit for the search warrant rise at gave best more suspicion perhaps, accurately, hope — —on *8 of part the affiant that the search would turn dust up particles such as the officers had in been unable to find however, likely more Mere places. suspicion, cannot take the of “facts and circumstances . place . . such as warrant man prudence and caution in believing” was the search. Dumbra that cause for probable States, v. United For 268 U. S. 435 (1925). these reasons the trial court should have granted defendants’ mo- search; tion to suppress evidence disclosed by drill, the box namely, that had contained Skil serial number and the sales slip.

The other for reversal do not points call for ex- tended discussion. We with the agree appellants’ con- tention that court erred in in its giving instructions a definition of “alibi” that required not jury only find that the defendants were not when the present crime was committed but also that they were without or connection with the “knowledge offense.” The quot- ed was in phrase substance five times in the repeated instruction. The instruction was defective that fatally it would have allowed the to reach jury finding if found guilty they that the defendants had innocent offense, did not though even of the knowledge in it. participate hand, in the no error court’s we see other On the and ac- principals defining instruction

having given the Fergusons that theory the State’s It was cessories. crime, no but there was in the jointly participated had have either one may what part evidence to show direct told substance were Hence the jury properly played. commission and abets another one who aids that also as guilty principal. of an offense is ar- Glenn Bobby Ferguson Finally, appellant criminal the habitual respect three gues points First, is of such statutes the constitutionality statute. out it enough point questioned, been sustained. Wharton’s Criminal has validity long Ed., Procedure, 1957). (Anderson’s Law and § is insisted it Secondly, proof Ferguson’s in that the certified convictions was defective prior name, him as Glenn identified copies merely Bobby re- That Bobby Ferguson. argument State, Ark. S. W. Higgins jected we find no merit in the (1962). Thirdly, appellants’ have known that one or must argument jury the other of the defendants had been con- previously offense, victed of some because the verdict forms simply to make a that were first submitted required jury without also or innocence finding guilt fixing how the matter Counsel do suggest punishment. have been handled with fairness any greater could *9 defendants, the nor cited to any authority toward the trial court’s was to procedure subject show that in find no of error the court’s criticism. We semblance of the verdict forms. selection remanded for a new trial.

Reversed and and C. J., Harris, J., concur. Fogleman, concurring. Justice, agree Harris, Chief I Carleton 148 this case should be reversed

that because erron- alibi, to eous instruction I relating do agree not with the that the affidavit of majority Officer Brooks was defective in that it did set not forth sufficient facts magistrate enable determine that independently there was cause for probable the issuance the search warrant. The affidavit and circumstances surrounding are forth in the set I see majority opinion, and no point me, in further. To commenting forth grounds set in the affidavit were ample justify magistrate warrant, I and therefore issuing respectfully dissent. A. Fogleman, Justice, I concur concurring. John in the result reached but do majority agree upon the basis which that result should be reached. In my opinion affidavit states a reasonable ground for belief that and shoes in clothing Ferguson’s apart- ment would contain telltale particles asbestos filling safe. “peeled” me, It appears how- ever, that the search warrant was fatally defective there is no for the authority issuance of such a warrant, however desirable it might be that magistrates be vested with that authority. of the

According testimony municipal judge warrant, who issued the search the affidavit repro duced sole basis its majority opinion issuance. This affidavit nowhere mentions belief any that there were or other burglar tools contraband be were place any searched other articles for which a search warrant issued either under might or common I statutory authority. agree law with the there must be such appellants authority before any officer has the to issue judicial a search power warrant. S., v. U. 298, 261, Gouled 41 U. S. S. Ct. 65 L. Ed. 255 195, White v. Wagar, 185 Ill. E. (1921); 647 57 N. State, 52, Sugarman Md. 195 A. (1900); Seizures, Searches S. also, C. See (1937). J. 64; Seizures, 14; 47 Am. Searches and § Varon, Searches, § Jur. 371; Seizures Immunities 4 Whar Procedure, ton’s Criminal Law and Anderson 173 §

149 authority is common law for It is clear that there burglary tools, for the issuance of a search warrant property, any property which it is stolen or forfeited possess, weapons or of unlawful instrumentalities and other articles of such nature and crime character. Boyd S., 616, 524, v. U. 116 U. S. 6 Ct. See 746 S. L. Ed. 29 (1886); S., 383, 341, Weeks v. U. U. S. 232 34 S. Ct. 652, 834, L. Ed. L. R. A. Ann. Cas. 1915B 1915C 1177 (1914). Hayden,

I do not think that the of case Warden v. 1642, (1967), Ct. L. U. S. S. Ed. 2d 782 upon by state, holding relied overruled Gouled in its authority is that there no common law for issuance of Warden, a warrant to search for “mere In evidence.” contemporaneously search was made with a lawful ar- upon pursuit. incriminating evidentiary rest hot material was found and seized the officers in the proper premises per- course of a search of the for the persons weapons arrested, son or to be and instru- only mentalities or fruits of the crime. The effect of upon my opinion, situation, Warden this is the hold- ing that there are no federal constitutional inhibitions against the seizure of mere evidence. There is no indica- authority tion that case that there for the issuance warrant, of such authority. statutory without common law or any I have been unable to find statute that authorizes Ferguson’s issuance a warrant to search for cloth- ing and shoes. I do believe can be con- sidered instrumentalities of the crime. suggested

It is authority that we found inherent justices peace municipal judges for search of the to issue anything

warrants for which a search is con- stitutionally permissible Albright Karston, agree Ark. argument. S. 176 W. I do not this place, authority

In the first of the munic- ipal judge properly to issue a authorized warrant was upon authority based justices the common law peace power justices to issue warrants. The of the *11 was related that case the warrants to issue

peace to search issuance of warrants for the statutory authority of the destruction authorizing devices and gaming majority opinion, According devices. such all of the articles that showed testimony undisputed on gambling used actually carrying being seized were The purpose. argument no other and for operations, limited consti- only by inherent and is authority that lan- upon following is hinged restrictions tutional opinion: in that guage *

* * establish- “bookmaking” of a The operation and, of the since justices felony constitutes ment of accused persons to cause have jurisdiction peace them for before brought and to be arrested felony have trial, that they power follows it examining used in the which devices by warrant a search issue seized, they be may felonies of commission be evidence, may they as be used may outlawed have been such as if are they destroyed, statute. by that, dictum, even if this is not language

I submit when is vested in only power justices is applicable it statute to issue law common the peace used the commission for instrumentalities warrants further. and nothing felonies in the ma- matters covered with all other I agree with reference language certain except jority opinion of the search as a of lack of success to consideration of the validity in determination factor significant of the failure of officers and consideration warrant of the dust on the clothing Fergu- find incriminating affidavit was made. before the sons of the validity warrant should be determined the basis of the upon evidence produced before the mag- istrate it. Success of a issuing search will not validate 84, 481 State, Ark. warrant. Walton and Fuller v. S. W. Failure should not be 2d 462. evidence of invalid- This ity. premise recognized United States v. Cun- F. ningham, (D. C. Ct. App. 1970). dis- the officer to failure of of the The significance to find evidence had failed and others that he close of the clothing on the persons dust incriminating how the I see me. cannot eludes Fergusons completely It concealing anything. been be said to have can officer had been if appre- different the Fergusons might in- and there burglarized premises hended upon were not seen It must be remembered spected. after the bur- hours until motel the neighboring IV2 had would have ample discovered. They had been glary *12 residence, bathe and clothes change to their time to go Camino, if the El dared to to rescue try before they in the safe I active participants peeling. had been faith or with- lack any good find no indication the of- magistrate by from of information holding ficers. Mr. Goldberg find the language I Justice Ventresca, Ct. States 580 U. S. S.

United to be appropriate: L. Ed. 684 (1965), * * * commands, like all the Fourth Amendment’s are practical constitutional requirements, of the Court’s cases are If the teachings abstract. served, and the constitutional policy to be followed warrants, the one in- for search such as affidavits here, must be tested interpreted by mag- volved commonsense and realistic and courts istrates drafted by nonlawyers are They normally fashion. and haste of a criminal investigation. in the midst once of elaborate specificity Technical requirements no law have pleadings prop- exacted under common atti- in this area. A grudging negative er place tend courts toward warrants will tude by reviewing officers discourage police submitting before to a officer acting. evidence judicial