Blankenship v. State

• Citation: 258 Ark. 535,527 S.W.2d 636
• Decision Date: 22 September 1975
• Docket Number: No. CR,CR
• Parties: Hubert BLANKENSHIP, Appellant, v. STATE of Arkansas, Appellee. 75--89.
• Court: Supreme Court of Arkansas

Page 636

527 S.W.2d 636

258 Ark. 535

Hubert BLANKENSHIP, Appellant, v. STATE of Arkansas, Appellee.

No. CR 75--89.

Supreme Court of Arkansas.

Sept. 22, 1975.

Carl Creekmore, Van Buren, for appellant.

Jim Guy Tucker, Atty. Gen., by Robert Newcomb, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Hubert Blankenship was found guilty of keeping, conducting and operating gambling house in violation of Ark.Stat.Ann. § 41--2001 (Repl.1964). On appeal, he first asserts that his conviction should be reversed because the circuit court erred in denying his motion to suppress evidence obtained through a search of Apartment 25 of the Van Buren Motel, the place where the state alleged he carried on the operation. The basis of the attack upon the search was the assertion that the warrant therefor was unlawfully issued because probable cause was not shown by the affidavits upon which it is based. We hold that there was sufficient showing of probable cause.

The search warrant was issued by the circuit judge. It authorized the search of Apartments 24, 25, 26 and 30 of the Van Buren Motel. The warrant recites that it is based upon the affidavits of Dwain Thompson and Curtis Balch. It includes a finding that the judge was satisfied that probable cause existed and that grounds for issuance of the search warrant existed.

In his affidavit, Thompson stated that: when he came to Fort Smith on February 25, 1974, on a special assignment to investigate gambling activities in Crawford and Sebastian Counties, he talked to Detectives Balch and Jankowski of the Fort Smith Police Department's vice squad and they gave him a telephone number (474--3508), which they believed to be in use in gambling activities; on the following day, he made two calls to this number and recorded the conversations on tapes and transcriptions of these conversations were attached as a part of his affidavit; he obtained a copy of records of the Southwestern Bell Telephone Company showing that this number was listed in the name of Hubert Blankenship at Apartment 30, Van Buren Motel in Van Buren; two days later he went to the motel and sketched its layout, showing the location of motel room 30, and this sketch was made a part of his affidavit. The transcript of the telephone calls revealed that: Thompson had talked with a person who identified himself as Bobby; Bobby could not give Thompson the 'scratches' when he called at 10:00 A.M., but later had them and stated them in nine races; Thompson asked for Hubert, but was told that he was 'out on the run somewhere'; when Thompson tried to place a bet, Bobby refused to take it because he did not know the caller, who had been identified to him only as R.A., a salesman for Jimco Electronics, in town for three or four weeks, but said that Hubert would return in about 15 minutes and might take it; about an hour later when Thompson called, the person answering identified himself as Hugh, but Thompson addressed him as Hubert and again identified himself as R.A.; the answering person said, 'R.A., I have never played with you;' 'I can't fool with you until I find out who you are . . .', '. . . if you'll find somebody, call me, . . .' and '. . . just find somebody that I know that knows you and we might do some business'.

In his affidavit Balch stated that a reliable, confidential informer, who had previously given him reliable information on gambling activities had related, on February 28, 1974, that he had personally placed bets with Billy Reeder at Apartment 17 of the Van Buren Motel, had seen numerous betting slips, racing forms and scratch sheets there and had used telephone number 474--8722 in placing bets with him on numerous occasions, and that Bobby Plymale and Hubert Blankenship were booking together in Apartment 25 and had access to Apartments 24 and 26, which could be used for booking purposes by running the telephone cord out the window or under the floors into those rooms, and that they sometimes used Apartment 30, where Blankenship lived, for booking purposes.

We have no hesitation in holding that these affidavits, considered together, are sufficient basis for a determination of probable cause for a search of Apartment 25, and rejecting appellant's arguments that the affidavits contain only affirmations of suspicion and belief, or conclusions of the complainant. Furthermore, unlike the situation in Cockrell v. State,256 Ark. 19, 505 S.W.2d 204, the affiant Balch did state reasons for his giving credence to the statements of the informer. In Cockrell, the affiant did not even know his informant and had no knowledge of his reliability. As in Flaherty v. State, 255 Ark. 187, 500 S.W.2d 87, we accord some weight to the findings of probable cause by the issuing judge and hold that the affidavits presented, when considered together, constitute a substantial basis in support of that determination. It is true that we held in Cockrell that oral statements not reduced to writing and accompanied by affidavit could not be considered in determining probable cause. Here, the Aguilar test requiring that the magistrate be informed of underlying circumstances supporting a statement as to the reliability of a confidential informer was unquestionably met. The affidavit of Thompson clearly corroborated the statements of the informer to Balch. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Bailey v. State, 246 Ark. 362, 438 S.W.2d 321. See also, Spinelli v. U.S., ...