Bailey v. State
| Decision Date | 17 March 1969 |
| Docket Number | No. 5400,5400 |
| Citation | 246 Ark. 362,438 S.W.2d 321 |
| Parties | Floyd BAILEY, Jr., Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Harold L. Hall, Little Rock, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
Floyd Bailey, Jr. was convicted of illegally possessing narcotics. Court-appointed counsel was relieved after the trial and appellant, Bailey, went to the penitentiary. The time ordinarily allowed for appeal expired; however, the trial court granted Bailey a belated appeal because he did not have the assistance of counsel to represent him and timely file the appeal. Bailey challenges the validity of a search of his apartment and of his person, both of which revealed the presence of marijuana. The pertinent facts will be related under our discussion of Bailey's two points for reversal.
POINT I. The court erred in admitting evidence obtained by affidavit and search warrant issued upon insufficient facts and information in violation of the constitutional rights of the defendant. The two arguments under this point are (1) that the affidavit for search warrant was signed by Officers Terry and Gibson, who did not appear before the magistrate; and (2) that the affidavit provides only the unsupported conclusions of the affiants. In other words, appellant says the affidavit does not present the underlying facts or circumstances so that the examining magistrate could have made an independent determination as to the existence of probable cause. It is therefore argued that evidence obtained at defendant's home was inadmissible.
With respect to the execution of the affidavit for search warrant, here is what the record reveals: Officers Terry and Gibson obtained from a source not disclosed a printed form used by the Municipal Court of Little Rock and titled 'Affidavit for Search Warrant.' The body of the affidavit is as follows: 'I, John Terry and W. D. Gibson, LRPD, do solemnly swear that illegal narcotics, marijuana, and drugs, are concealed in the premises occupied by Floyd 'Spike' Bailey at 1003 High Street, Apt. 14, LR., in the State and County aforesaid, and pray a warrant from said court to search said premises.' The two officers signed the instrument. The jurat to the affidavit reads: The jurat is not executed by any official. The Clerk of the Municipal Court, Criminal Division, testified that he took no part in the execution of the affidavit.
We examine the search warrant issued on the basis of the proposed affidavit. The warrant recites that 'complaint has been made, on oath, before the clerk or judge of the Municipal Court of Little Rock, by John Terry and W. D. Gibson, LRPD, that certain illegal narcotics, marijuana, and drugs are concealed on the premises occupied by Floyd 'Spike' Bailey at 1003 High Street, Little Rock, and whereas, being satisfied that there is reasonable ground for such suspicion, you are therefore hereby commanded to search the said place above mentioned * * *' It will be noted that the search warrant issued by Judge Sullivan stated that it was issued on information supplied by Officers Terry and Gibson. It was undisputed that these officers did not appear before the magistrate. Officer Baer said he obtained the search warrant for Officers Gibson and Terry. There is but one conclusion to be reached from the testimony. Officers Terry and Gibson executed a form of affidavit for a search warrant and asked Detective Baer to present the document to Judge Sullivan and obtain a search warrant.
The affidavit for a search warrant is void on its face. The Constitution of Arkansas, Art. 2, § 15, requires the search warrant to be supported by oath or affirmation. The affidavit shows that the officers who executed the document did not appear before any officer authorized to take such an acknowledgment. The proof shows that the subscribing officers sent a third party, Detective Baer, to obtain the warrant. The purported affidavit, which is the sole evidence of probable cause afforded the magistrate, is defective in that it states a mere conclusion. A magistrate is not permitted to accept a complainant's conclusions without question. Walton and Fuller v. State, 245 Ark. 84, 431 S.W.2d 462 (1968); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). Mr. Justice White's concurring opinion in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), analyzes Giordenello and six other cases on the question of prerequisites for issuance of a search warrant. If an officer swears there is contraband at a particular address there are three possibilities for the basis of his conclusion:
To continue reading
Request your trial
-
Shaver v. State, s. CR
...a potentially dangerous man. Sibron v. New York, 392 U.S. at 65, 88 S.Ct. at 1904 (emphasis added). See also Bailey v. State, 246 Ark. 362, 367, 438 S.W.2d 321, 324-25 (1969) (reversing appellant's conviction and stating officer's search of appellant's pocket and seizure of pocketbook was i......
-
Byars v. State
...Likewise, in Cockrell v. State, 256 Ark. 19, 505 S.W.2d 204, the requirements were further explained as follows: 'In Bailey v. State, 246 Ark. 362, 438 S.W.2d 321 (1969), we said: 'The purported affidavit, which is the sole evidence of probable cause afforded the magistrate, is defective in......
-
State v. Eirich
...State v. Holmes, 17 Or.App. 464, 522 P.2d 900, 904 (Or.Ct.App.1974) (discussing a search incident to arrest); Bailey v. State, 246 Ark. 362, 438 S.W.2d 321, 324 (Ark.1969) (discussing the reasonableness of a frisk); State v. Unruh, 281 Kan. 520, 133 P.3d 35, 39 (Kan.2006) (discussing the sc......
-
Durham v. State
...431 S.W.2d 462. The determination may not be based upon conclusions of those seeking the warrant. Walton v. State, supra; Bailey v. State, 246 Ark. 362, 438 S.W.2d 321. While the facts supplied in a written affidavit may be supplemented by oral testimony, these additional facts must be disc......