Willett v. State

Decision Date08 May 1989
Docket NumberNo. CR,CR
Citation769 S.W.2d 744,298 Ark. 588
PartiesBenny WILLETT, Appellant, v. STATE of Arkansas, Appellee. 88-205.
CourtArkansas Supreme Court

Frank H. Bailey, Mt. Home, for appellant.

David Eberhard, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

On September 13, 1988, the jury convicted the appellant of possession of a controlled substance with the intent to deliver and, as an habitual offender, he was sentenced to life imprisonment. He argues three points on his appeal: (1) the trial court erred in holding that the police had reasonable cause to stop and search the vehicle; (2) the trial court erred in sustaining the prosecution's objection to identification of the confidential informant; and (3) it was error to justify the search on the basis of "exigent" circumstances. We do not find prejudicial error. The conviction is affirmed.

Officer Lyle Scott, a detective for the Mountain Home Police Department, testified that during the six months prior to the arrest of the appellant on the present charge, he had received information from four or five sources that the appellant and his co-defendants were dealing in cocaine. Between January 19 and 22, 1988, two confidential informants told him that the co-defendants were making weekly trips to Jonesboro for the purpose of picking up cocaine to be brought back to Mountain Home and sold. The informants told him that the defendants would be driving a late model white pick-up truck or a gray primer-colored Pontiac GTO, and that both vehicles were kept at Ray's Auto Repair. The informants further told him that the supplies went quickly, but that if any was left after the initial sale it was kept in a toolbox at the repair shop. Scott was informed by one of the two confidential informants that he had overheard the co-defendants talking in a local cafe and that he understood they would be going to Jonesboro on January 22nd to get more cocaine. The confidential informants also informed Scott that the defendants usually carried handguns while making a delivery or picking up the cocaine. On the 22nd Scott and another officer drove by Ray's Auto Repair and saw two or three people standing near a late model white pick-up and gray primer-colored Pontiac GTO. The officers then went to a restaurant named Bobby Sue's Dawg House, expecting the suspects to come by and eat before leaving for Jonesboro. The officers were surprised when the suspects did not show up and after waiting for forty-five minutes went back to the repair shop where they found a "closed" sign and the gray Pontiac missing.

Being unable to locate the vehicle in the Mountain Home area, Scott contacted the sheriff's department and a surveillance was established on the roads going to Jonesboro. About 6:30 p.m. the gray Pontiac was observed at the intersection of Highways 5 and 177, near Mountain Home. Officer Parnell had been assigned to the surveillance team and upon noticing the GTO, he fell in behind it. He followed the GTO along the highway until it turned off on the Tracy Ferry Road. While following the car Officer Parnell observed the appellant, in the backseat of the GTO, apparently attempting to hide something. He also observed the passenger on the right front apparently trying to hide something. He turned on his blue light and stopped the vehicle at that time. Two other officers came immediately and helped Parnell place the suspects under arrest and conduct a search of the vehicle. Handguns and controlled substances, including cocaine, were found in the vehicle.

The state refused to identify the confidential informants and after a hearing the trial court agreed with the state. Motions to suppress the evidence were denied. At the pretrial hearing the foregoing information was presented by Officers Scott and Parnell. Officer Bill Beach, narcotics investigator for the state police, testified that he had been working with Scott and that he had received the same information presented by Scott.

The appellant's first argument for reversal is that the court erred in finding the authorities had probable cause to search his vehicle and seize the items therein. He admits, however, that if the facts of this case meet the requirements of a vehicular search as authorized by A.R.Cr.P. Rule 14.1, that it was a valid search. The pertinent part of Rule 14.1 reads as follows:

(a) An officer who has reasonable cause to believe that a moving or readily movable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:

(i) on a public way or waters or other area open to the public....

Therefore, if the facts and circumstances reveal that the officers had reasonable cause to believe that drugs were contained in the GTO, it was a legal search and seizure.

The state has the burden of proof in this case because it was a warrantless search. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983). The success of the search will not validate the search if it was unlawful in its inception. Walton v. State, 245 Ark. 84, 431 S.W.2d 462 (1968). The test for reasonable cause for stopping and searching a vehicle depends upon the collective information of the police officers and not solely on the knowledge of the officer stopping the vehicle. Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980). An officer has the right to stop a vehicle and make a warrantless search if it is on a public highway and he has reasonable cause to believe the vehicle contains evidence subject to seizure and the circumstances require immediate action to prevent destruction or removal of the evidence. Tillman v. State, 275 Ark. 275, 630 S.W.2d 5 (1982). Reasonable cause as required by A.R.Cr.P. Rule 14.1 exists when the officers have reasonably trustworthy information, which rises to more than mere suspicion, that the stopped vehicle contains evidence subject to seizure and a person of reasonable caution would be justified in believing an offense has been committed or is being committed. Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988). The right to search and the validity of the search are dependent on the reasonableness of the cause the searching officer has for believing that the contents of the automobile constitute a violation of the law. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978).

On appellate review this court makes an independent determination based upon the totality of the circumstances. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988). In the present case at least two officers had received several tips from informants that the appellant and his associates were involved in drug dealing. Some of the tips were from sources which were not known to be reliable by the officers. However, nothing prevents an officer from investigating the information furnished to him by even an anonymous phone call. In Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987), we stated:

The anonymous tips in the present case were of value to the officers in making their initial investigation. Generally speaking, an officer would indeed be foolish to ignore an anonymous tip. So long as the officer does not invade the privacy and freedom of others, he is free to investigate any police matter in any manner not prohibited by law.

The information received by the officers in the present case was neither prohibited nor illegal. Therefore, they were free to use the information in their investigation in any manner which they deemed proper.

The officers did not act solely upon the advice given by the confidential informants. Such information was used as a catapult to launch a more intensive investigation. As it turned out, most of the information furnished by the informants was true. However, the information was not used as the basis for an arrest and seizure but rather to aid in further investigation. Reasonable cause may be based upon a combination of verified information furnished by anonymous callers and evidence gathered by the police in furtherance of an investigation of the subject matter. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The facts in the present case are quite similar to those in Gates, inasmuch as the anonymous letter in Gates informed the officers of pending drug transactions. In the present case unidentified informants notified the officers orally that the appellant was about to undertake additional drug dealing operations. The basic holding of the Gates opinion abandoned the "two-prong test" of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), in favor of the "totality of the circumstances" test.

The officers in Gates acted upon the anonymous letter by investigating the allegations contained in the letter. As it turned out the statements in the anonymous letter proved true up to a point.

Informant's tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in value and reliability. Rigid legal rules are ill-suited to an area of such diversity. One simple rule will not cover every situation.

Illinois v. Gates, supra.

The Gates decision recognized that unproven allegations or informant's tips may be corroborated by independent investigative work by the police.

The Gates opinion did not open the floodgates to mass arrests based upon anonymous and unverified tips. It dealt with one single anonymous letter giving many details of conditions existing at the time the letter was written and projecting future actions to be taken by Gates and his wife. The investigating officers verified several of the tips. All of them proved accurate and reliable. The investigation could not cover what had not yet happened. The decision held that the magistrate issuing the search warrant was justified in...

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