Brown v. State

• Decision Date: 08 March 1976
• Docket Number: No. CR-75--27,CR-75--27
• Citation: 259 Ark. 449,534 S.W.2d 213
• Parties: Calvin BROWN and Cecil Bettis, Jr., Appellants. v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 213

534 S.W.2d 213

259 Ark. 449

Calvin BROWN and Cecil Bettis, Jr., Appellants. v. STATE of Arkansas, Appellee.

No. CR-75--27.

Supreme Court of Arkansas.

March 8, 1976.

Rehearing Denied April 5, 1976.

Pickens, Boyce, McLarty & Watson by James A. McLarty, Newport, McArthur, Lofton & Wilson, Little Rock, for appellants.

Jim Guy Tucker, Atty. Gen. by Gary B. Isbell, Asst. Atty. Gen., Little Rock, Leroy G. Blankenship, Pros. Atty., Walnut Ridge, for appellee.

JONES, Justice.

Calvin Brown and Cecil Bettis, Jr. were jointly tried before a jury and convicted of the crime of burglary. They were sentenced to five years each in the Department of Correction and a 15 year sentence, with five years suspended, was added to Brown's sentence for the use of a firearm in connection with the crime. Both Brown and Bettis have appealed to this court and are represented by separate attorneys who have filed separate briefs.

Brown and Bettis were also jointly tried and convicted at a subsequent trial on charges of robbery arising out of the same transactions or incidents as did the burglary charges. They both appealed from the judgments on the robbery convictions but their appeals in the robbery case are treated in a separate opinion.

The facts, as gathered from the evidence in the record, appear as follows: On a Sunday evening Mr. and Mrs. Harper returned to their home in Newport from playing bridge with friends. They unlocked the back door of their home and when they entered their living room, they were confronted by two men with stocking masks over their heads and faces. One of the intruders carried a pistol with which he forced the Harpers to lie on the floor while their hands and feet were tied with nylon cord or rope, and tape was wrapped around their heads and drawn over their eyes and mouths. Some valuable rings were taken from Mrs. Harper's fingers; Mr. Harper's wallet containing cards and money was taken from his pocket and he was rendered temporarily unconscious by blows on the head and shoulder with a pistol or some other instrument. The Harpers were then dragged across the floor out of the living room. Mrs. Harper heard one of the intruders in her dining room calling out what appeared to be signals on a walkie-talkie 'K--1 to K--2' or something like that. The intruders then left.

Mrs. Harper soon freed herself from her bonds and called the police. The police officers arrived in a matter of minutes and an ambulance was called to the scene and took the Harpers to the hospital. The glass in a side window of the Harper residence had been broken over the latch and pry marks, as if made by a screwdriver, appeared on the outside windowsill.

Mr. Eugene Tidwell, who lived, about one and one-half blocks down the street from the Harper residence, had been sitting on his front steps and had observed Brown and Bettis pass his house in Bettis's automobile with Bettis driving. He observed the Bettis automobile stop for a few minutes on three different occasions within a short period of time between his house and the Harper residence, the last stop being closer to the Harper home than to his own. Soon after he last saw the Bettis automobile stop, and then move on, he heard the sirens from the ambulance and police vehicles and observed the commotion as the vehicles converged at the Harper residence. He walked up to the Harper residence and upon inquiry by the investigating officers, he advised them of what he had seen in relation to Brown and Bettis, and described the Bettis automobile to the officers.

Through radio communication between the police officers, a roadblock was immediately set up between Newport and Batesville. Bettis's name and his automobile description were radioed to officers manning the roadblock and within a short period of time Brown and Bettis appeared and stopped at the roadblock in Bettis's white over yellow Chrysler automobile with Bettis driving.

The officers searched Brown and Bettis at the roadblock and brass knuckles were removed from Brown's hip pocket. As Brown got out of Bettis's automobile, the officers observed and removed from the floorboard of the automobile, on the passenger side where Brown had been sitting, a loaded 45 caliber semi-automatic pistol.

Brown and Bettis were placed under arrest and taken in a police patrol car to the police station in Newport. Bettis's automobile was also driven to the police station where it was searched that same evening. A walkie-talkie radio transmitter-receiver was found under the front seat on the passenger side of the automobile. A loaded .25 caliber semi-automatic pistol was found under the armrest between the driver and passenger side of the front seat. A briefcase containing a .45 caliber size pistol holster, a flashlight, and some .38 and .45 ammunition were found in the trunk. Three screwdrivers were found in the back seat and one of the diamond rings taken from Mrs. Harper's fingers was found between the backrest and seat cushion in the rear seat of the automobile. The offices returned to the scene of the roadblock and in searching the ditches and shoulders of the highway in the direction from which the Bettis automobile had approached, they found a brown paper bag containing Mr. Harper's wallet. The wallet was found in the ditch on what would have been Bettis's righthand side of the highway, about 75 or 80 yards from where the roadblock had been maintained, and within plain view of the roadblock. The wallet contained Harper's driver's license, his ID and credit cards but no money.

As already stated, the appellants are represented by separate counsel and have filed separate briefs on this appeal. In some instances they have designated the same points on which they rely for reversal and in other instances they have designated separate points not common to both, so we shall discuss the designated points accordingly.

The appellant Brown contends that his arrest was illegal. Both Brown and Bettis contend that the search of the Bettis automobile was illegal, and that the trial court erred in overruling their motions to suppress evidence obtained in the search. We find no merit in these contentions.

Brown argues that his arrest at the roadblock was illegal because it was without probable cause. State policeman Noel Baldridge, who made the arrest, had received information by police radio that a robbery had just occurred in Newport; that Bettis was a prime suspect and that his automobile should be stopped. State Police Lieutenant Wilson broadcast the information to Baldridge and, aside from information that Bettis and Brown had just left the scene of the crime, Wilson had independent information of other similar crimes in which Bettis and Brown had been involved or suspected.

The arresting officer is entitled to credit for the collective knowledge of the entire police team in such cases. Johnson v. State, 249 Ark. 208, 458 S.W.2d 409. In United States v. Stratton, 453 F.2d 36 (8th Cir. 1972), cert. denied 405 U.S. 1069, 92 S.Ct. 1515, 31 L.Ed.2d 800, the court said:

'We think the knowledge of one officer is the knowledge of all and that in the operation of an investigative or police agency the collective knowledge and the available objective facts are the criteria to be used in assessing probable cause.'

Furthermore, all automobiles were being stopped at the roadblock and a loaded .45 caliber pistol was found on the floorboard where Brown was sitting and brass knuckles were found in his hip pocket.

Both appellants argue that the affidavit upon which the search warrant was issued was insufficient because it contained hearsay, which was constitutionally impermissible under 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), since the reliability of the hearsay source was not established and the statements were insufficient to show probable cause anyway. The Aguilar and Spineli decisions require that the affidavit for a search warrant contain sufficient information to enable the issuing magistrate to determine that the hearsay informant is reliable, and that sufficient underlying circumstances be related to establish probable cause for the warrant. Overstrict interpretation of the rule laid down in Aguilar and Spinelli has been tempered and clarified by a number of decisions since Aguilar and Spinelli. In United States v. Bell, 457 F.2d 1231 (5th Cir. 1972), the court said:

'. . . (A) specter has arisen in this case that deserves to be laid to rest. It is now a well-settled and familiar concept, as enunciated by Aguilar and Spinelli, that supporting affidavits in an application for a search warrant must attest to the credibility of an informant and the reliability of his information. * * * We have discovered no case that extends this requirement to the identified bystander or victim-eyewitness to a crime, and we now hold that no such requirement need be met. . . . Such observers are seldom involved with the miscreants or the crime. Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it. A 'neutral and detached magistrate' could adequately assess the probative value of an eyewitness's information because, if it is reasonable and accepted as true, the magistrate must believe that it is based upon first-hand knowledge. Thus we conclude that Aguilar and Spinelli requirements are limited to the informant situation only.'

See also United States v. Burke, 517 F.2d 377 (2nd Cir. 1975); United States v. Unger, 469 F.2d 1283 (7th Cir. 1972), cert. denied 411 U.S. 920, 93 S.Ct. 1546, 36 L.Ed.2d 313 (1973); United States v. Mahler, 442 F.2d 1172 (9th Cir. 1971), cert. denied 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971); United States v. McCoy, 478 F.2d 176 (10th Cir. 1973), cert. denied 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973); United...