Berry v. State

• Decision Date: 15 May 1978
• Docket Number: No. CR,CR
• Citation: 263 Ark. 446,565 S.W.2d 418
• Parties: Signor BERRY, Jr., Appellant, v. STATE of Arkansas, Appellee. 78-11.
• Court: Arkansas Supreme Court

Page 418

565 S.W.2d 418

263 Ark. 446

Signor BERRY, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 78-11.

Supreme Court of Arkansas, In Banc.

May 15, 1978.

Boyd A. Tackett, Jr., Texarkana, for appellant.

Bill Clinton, Atty. Gen. by Joseph H. Purvis, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

Signor Berry, Jr., was convicted of possession of heroin with intent to deliver and was sentenced to 25 years' imprisonment and to a $5,000 fine. The two principal points for reversal concern the validity of the search of an automobile and the sufficiency of the State's proof that Berry's possession of a minute quantity of heroin was with intent to deliver. We sustain the search, but hold that the State proved possession only, not possession with intent to deliver.

At about 9:15 on the night of December 23, 1976, two Miller County deputy sheriffs were patrolling a county road in an area where narcotic activity had been reported. The officers saw two men (the appellant Berry and Charles Harper) sitting in a Cadillac beside the road. The officers stopped to investigate and were told that the car had overheated and that the men were waiting for it to cool off. The officers were suspicious, but drove on after having written down the Cadillac's license number.

A mile or two farther down the road the officers investigated a pickup truck sitting off in the woods and arrested its two occupants for the possession of a substantial quantity of marihuana. In searching that truck the officers found a gasoline credit card slip bearing the Cadillac's license number. The officers inferred a connection between the two vehicles, went back to where the Cadillac was parked, and stopped it as Harper attempted to drive away. As the officers approached with their spotlight fixed on the Cadillac, Berry leaned down and seemed to fumble with something on the floor.

The officers directed Harper and Berry to get out of the car, which was illuminated by the spotlight. One of the officers then looked into the car and saw, on the floorboard on the passenger's side, an open bank bag containing syringes, white powder, and other things which the officer recognized as paraphernalia used in trafficking in drugs. The bank bag was sitting on a briefcase that was closed but not locked. Both the bag and the briefcase were searched to some extent at the scene and more thoroughly at the county jail. The bag contained the small quantity of heroin that we will describe later. The briefcase contained a loaded pistol and, among other things, Berry's driver's license and a card issued to him by the Veterans Administration.

We hold the search of the bag and briefcase to have been valid. The two officers, in view of the facts known to them, had solid reasons for stopping the Cadillac when its driver apparently tried to elude them. The plain-view doctrine came into play when one officer looked into the vehicle and saw what he recognized as narcotics paraphernalia. The officer then had probable cause for believing that other areas in the car might contain contraband. A thorough search of the vehicle was therefore warranted. The officers were justified in searching the briefcase, just as a search of a suitcase was upheld in similar circumstances in United States v. Finnegan, 568 F.2d 637 (9th Cir., 1977).

The search of the briefcase was not prohibited either by the Supreme Court's holding in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), or by our holding in Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977). In...