Morris v. State
| Decision Date | 08 May 1972 |
| Docket Number | No. 5674,5674 |
| Citation | 479 S.W.2d 860,252 Ark. 487 |
| Parties | Michael E. MORRIS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Jack Holt, Jr. and Jack Sims, Little Rock, for appellant.
Ray Thornton, Atty. Gen. by John D. Bridgforth, Asst. Atty. Gen., Little Rock, for appellee.
Charged with the unlawful possession of LSD, a hallucinogenic drug, the appellant was found guilty and sentenced to a $250 fine and to 12 months imprisonment. His principal contention for reversal is that the trial court erred in refusing to suppress evidence obtained by means of a search warrant assertedly issued without lawful authority.
That contention must be sustained. The search warrant in question, issued by a municipal judge, directed officers to search the appellant's apartment for LSD, marihuana, and other specified drugs. Under the authority of that warrant the police entered the apartment and seized certain drugs, which were received in evidence at the trial. In the recent case of Grimmett v. State, 251 Ark. ---, 476 S.W.2d 217 (1972), which was decided after the present case was tried, we held on rehearing that at the time the search warrant in the Grimmett case was issued, there was neither common law nor statutory authority for the issuance of a search warrant for contraband drugs. The search warrant in that case, as in the case at bar, was issued before the effective date of Act 123 of 1971. Ark.Stat.Ann. § 43--205 (Supp.1971). Under the Grimmett opinion, which is controlling here, the trial court erred in refusing to suppress the evidence obtained by means of the search warrant.
We find no other reversible error. The defendant's requested instruction upon the State's burden of proof was fairly covered by the court's instruction upon that subject. We need not pass upon the sufficiency of the evidence, for the State's proof will necessarily be different if the case is retried. There is no reason to think that other asserted errors will recur upon a new trial.
Reversed.
HOLT, J., not participating.
Along with the other two who are dissenting in this case, I concurred in the case of Grimmett v. State, (substituted opinion on rehearing February 21, 1972) 251 Ark. ---, 476 S.W.2d 217. Like these two justices, I did not feel that the constitutional question should have been reached, and I certainly do not feel that that case is controlling in the instant appeal. Grimmett, as a doctor, had a right to have drugs in his possession, and it was only because of a violation of regulations that he became embroiled with the law, viz, the dispensing of such drugs contrary to law, and the failure to keep proper records. Here, Morris had no such right; drugs in his possession were clearly contraband.
The majority opinion in this case is predicated on the fact that they find there was no statutory authority, or common law authority, to obtain the search warrant. Ark.Stat.Ann. § 82--2109 (Supp.1971) provides that any officer or employee of the State Health Department designated by the State Health Officer to conduct examinations, investigations relating to depressant or stimulant drugs may, when authorized by the State Health Officer, inter alia, execute and serve search warrants. In Grimmett, the court majority stated that the literal language of the statute did not authorize the issuance of a search warrant; that strict construction was required when a statute was at variance with the common law, and accordingly there was no authority to issue the warrant. This was a part of my reason for concurring in Grimmett, and I consider the holding to be highly technical--too technical. The chapter (§§ 82--2101 through 82--2109) is entitled 'Arkansas Drug Abuse Control Act', and was passed in 1967. The purpose of the Act undoubtedly was control of the sale, distribution, manufacture, and possession of depressant and stimulant drugs and counterfeit drugs. The authority in § 82--2109 was necessary to enforcement of the provisions of the Act. The exact language in the point under discussion is 'Execute and serve search warrants and arrest warrants'. Webster's Third New International Dictionary defines the word 'Execute' as 'To put into effect; carry out fully and completely * * * perform what is required to give validity to'. It is obvious to me that the word 'execute' is used in the sense of denoting acts necessary before serving a search warrant, viz, execution of an affidavit and obtaining the warrant. Why would the General Assembly have authorized these officers to serve search warrants, but not to obtain them? This would not only be ridiculous--but a totally futile gesture, for it is certain that a warrant cannot be served until it is issued. In my opinion the language is a clear authorization for the issuance and service of the search warrant. Under the technical construction in Grimmett, the majority might well also say that § 82--2109 only authorizes officers or employees of the State Health Department to perform the enumerated acts, but certainly, in my view, if employees of the State Health Department are authorized to obtain and serve search warrants, general law enforcement officers, whose primary business is to enforce the law, would have the same right.
This case presents another of the myriad questions which have arisen pertaining to searches and seizures as a result of the exclusionary rule foretold in Clubb v. State, 230 Ark. 688, 326 S.W.2d 816 and made applicable to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961). Precedent governing these questions is sparse, simply because they were not important when the evidence would not be excluded. I have long been of the opinion that there must be either statutory or common law authority for the issuance of a search warrant, in order to sustain a search and seizure against direct attack. See concurring opinion, Ferguson v. State, 249 Ark. 138, 148, 458 S.W.2d 383. I do not believe that the decision in Grimmett v. State (on rehearing Feb. 21, 1972), 251 Ark. ---, 476 S.W.2d 217 reached the correct result. I have already indicated that I do not feel that it is binding as precedent, because the question decided should not have been reached, there having been a nonconstitutional ground upon which the decision should have rested. See concurring opinion Grimmett v. State, supra. As I read Grimmett, the court held that any search and seizure based upon a warrant for which there was not specific statutory or common law authority was constitutionally unreasonable and that there was no such authority to search for substances coming within the prohibitions of the Arkansas Drug Abuse Control Act. My first disagreement with the majority in Grimmett is in the holding that an unauthorized search is constitutionally unreasonable. I agree with the Supreme Court of the United States, per Black, J., that a search authorized by state law may be constitutionally unreasonable and one not authorized by state law may be constitutionally reasonable. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Grimmett could have and should have been decided upon the simple question whether there was any authority for the issuance of the search warrants.
My next disagreement with the majority holding in Grimmett is its unwarranted limitation of the concept of the common law. Actually, the majority there made no exploration of the common law for authority at all. The opinion is based upon the nonexistence of any authorizing statute within the purview of our adoption of British statutes of a general nature. See Ark.Stat.Ann. § 1--101; Smith v. Smith, 219 Ark. 304, 241 S.W.2d 113. Our adoption of the decisional common law was not limited to that existing on the date specified in the limitation on statutes. Our adopting statute was passed December 6, 1837. See Moore v. Sharpe, 91 Ark. 407, 121 S.W. 341, 23 L.R.A., N.S., 937; Small v. Strong, 2 Ark. 198. Although we adopted the common law of England, we have recognized that there are many sources upon which we base our determination of that law, among which are cases from other American jurisdictions. State v. Phillips Petroleum Co., 212 Ark. 530, 206 S.W.2d 771.
To illustrate the wider breadth of the common law, we followed the common law rule that it is clearly the duty of a railroad company to give notice of the approach of trains at all points of known or reasonably apprehended danger in Missouri Pacific R.R. Co. v. McKinney, 189 Ark. 69, 71 S.W.2d 180. Certainly there were no English statutes or decisions on this subject in 1607. We have held that in construing a statute, we will take into account the common law in force at the time it was passed. State v. Pierson, 44 Ark. 265.
The cited cases are illustrative of the general rule as to the scope of the common law. Statements in the texts appropriately identify the common law. In 15A C.J.S. Common Law pp. 42, 43, 45, & 52 are found the following appropriate comments:
The common law in the several states consists of the common or unwritten law of England as it existed in 1607, when the colonists from England settled in America, or in some states at a later date, in so far as that law is applicable to the new surroundings and conditions and has not been abrogated by statute, and as it has been applied and modified by the courts of this country up to the time it became a rule of decision in the states. (Sec. 1c)
The common law is one of the forms of law, and is the embodiment of principles and rules inspired by natural reason, an innate sense of justice, and the dictates of convenience, and voluntarily adopted by men for their government in social relations. The authority of its...
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