Byars v. State

• Decision Date: 02 February 1976
• Docket Number: No. CR75--145,CR75--145
• Citation: 533 S.W.2d 175,259 Ark. 158
• Parties: Danny Mack BYARS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 175

533 S.W.2d 175

259 Ark. 158

Danny Mack BYARS, Appellant, v. STATE of Arkansas, Appellee.

No. CR75--145.

Supreme Court of Arkansas.

Feb. 2, 1976.

Rehearing Denied March 22, 1976.

John Dale Thweatt, DeValls Bluff, James M. Thweatt, Hazen, for appellant.

Jim Guy Tucker, Atty. Gen. by Jackson Jones, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Danny Byars, appellant herein, was charged with possessing marijuana with intent to sell and deliver, and a jury returned a verdict of guilty, fixing punishment at six years confinement in the Department of Correction, and a $5,000 fine. From the judgment so entered, Byars brings this appeal.

Two issues are presented, the first being whether the affidavit, upon which a warrant was issued to search Byars' car, meets constitutional standards previously set out by United States Supreme Court decisions, and decisions of this court, and if such standards were not met, whether the search can be upheld on the ground that appellant consented thereto.

Because of information obtained, hereinafter discussed, Trooper W. D. Davidson of the Arkansas State Police, assigned to Monroe County, accompanied by then Prosecuting Attorney Sam Weems and an area newspaperman, stopped Byars in his car at Main and Walnut Streets in Brinkley and took appellant into custody and drove him to the Brinkley jail where Byars was placed in a cell. Weems and the newspaperman remained at the scene of the arrest with the automobile. In the meantime, Captain James Neighbors of the State Police had arrived at the scene. While Byars was in the Brinkley jail, Davidson went to the Municipal Judge and requested a search warrant for appellant's car. The warrant was issued upon Davidson's affidavit, which reflects as follows:

'That he has reason to believe that on the premises known as 'A green 1970 Ford LTD, Arkansas APA--299, driven by Danny M. Byars, W. M. from Cotton Plant, Arkansas' in the county of Monroe, State of Arkansas, there is now being concealed certain property, namely 'Marijuana, drugs and or narcotics or other paraphernalia' which are 'I have received certain information from a confidential source, of known reliability and who has furnished reliable information in the past, and that the suspect has a general reputation of transporting and selling marijuana, and drugs.'

'And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: 'That the above marijuana, and drugs mentioned are being concealed in the above 1970 Ford LTD, bearing Arkansas license no. APA--299, driven by the above suspect, Danny M. Byars, Cotton Plant, Arkansas.''

Davidson subsequently testified at a pretrial hearing that he gave the Municipal Judge no other information than that contained in the affidavit. After obtaining the warrant, Davidson returned to the police station, removed Byars from the jail and took him back to the scene, where appellant's car was still parked. The Brinkley Chief of Police, George Bethell, and a Brinkley policeman, Robert Gaddis, accompanied Davidson and Byars back to the scene. At this point, there is a slight conflict in the evidence. Bethell and Gaddis testified positively that the warrant was read to appellant, Gaddis stating that Weems read the warrant to Byars. Davidson said that Byars stated, 'You don't need the warrant, it is in the car.' At any rate, the three officers all testified that Byars at this point stated, in effect, that he did not want to 'cause a show and embarrass his family,' and that what the officers were looking for was in the trunk of the car. Weems testified that his recollection was that appellant told Davidson, 'What you are looking for is in the trunk,' immediately after the arrest, and before the warrant was obtained. Thereafter, everyone returned to the police station, where the officers opened the trunk of the car and seized 38 sealed packages of green vegetable matter and 2 partially filled plastic bags containing green vegetable matter and assorted pills. Subsequently, at trial, a chemist from the State Department of Health testified that the vegetable matter tested positively as Cannabis Sativa L.

Apparently because of the unavailability of witnesses, and because appellant challenged both the validity of the search warrant and the voluntariness of an in-custody statement, the trial court held five separate pretrial hearings. During these hearings, the officers testified as heretofore mentioned, and at the conclusion of the hearings, the trial court held that the search warrant was valid, and, in addition, that appellant had given his permission for the car to be searched. The court did exclude from evidence the in-custody statement.

We think unquestionably, that under the decisions of the United States Supreme Court, and decisions of this court, the affidavit was insufficient to sustain the issuance of the search warrant. In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, the court held that an affidavit based upon hearsay was insufficient to justify a search warrant, and this decision was expounded upon in the case of Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. The court stated that:

'(W)e first consider the weight to be given the informer's tip when it is considered apart from the rest of the affidavit. It is clear that a Commissioner could not credit it without abdicating his constitutional function. Though the affiant swore that his confidant was 'reliable,' he offered the magistrate no reason in support of this conclusion. * * * The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI's source received his information--it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable. (Citing cases).'

The court concluded that the informant's tip was not sufficient to provide the basis for a finding of probable cause, and added:

'In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.' (Our emphasis)

Our own decisions are to the same effect. In Walton and Fuller v. State, 245 Ark. 84, 431 S.W.2d 462 (where the affidavit contained more information than the one before us), the law applicable to affidavits based on hearsay was summarized as follows:

'While an affidavit for a search warrant may be based upon personal observations of the affiant, it may also be based, in whole or in part, on hearsay information. When it is based upon hearsay, the magistrate must be informed of some of the underlying circumstances from which an informant concluded that the object of a proposed search was where he said it was. He must also be advised of some of the circumstances from which the officer concludes that the informer (whose identity need not be then disclosed) is credible or his information reliable. An affidavit, which does not contain any affirmative allegation that affiant speaks with personal knowledge of the matters contained therein and also fails to show that information given by an unidentified source was not merely his suspicion, belief or conclusion, has been held not to show probable cause.' (Our emphasis)

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 that it states a mere conclusion.' There we also said that when an officer obtains information from an informer (hearsay) 'the warrant should not issue unless good cause is shown in the affidavit for crediting that hearsay'. Then in Walton v. State, 245 Ark. 84, 431 S.W.2d 462 (1968), we said: 'In determining probable cause for the issuance of a search warrant, the magistrate must judge for himself the persuasiveness of the facts relied upon by a complaining officer and may not accept a complainant's conclusions without question'. And in Durham v. State, 251 Ark. 164, 471 S.W.2d 527 (1971), we said: 'It is elementary that a valid search warrant cannot be issued except upon probable cause determined from facts and circumstances revealed to the issuing magistrate . . ..''

A recent opinion by the United States Court of Appeals (Fifth Circuit), handed down August 1, 1973, sets out succinctly the requirements for a valid search warrant and the reasons therefor. The court in U.S. v. Chavez, 5 Cir., 482 F.2d 1268, first referred to what had been said in Aguilar v. Texas, supra, to-wit:

'(T)he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, (citations omitted), was 'credible' or his information 'reliable." 378 U.S. at 114, 84 S.Ct. at 1514.

The court then stated:

'This test is typically referred to as 'Aguilar's two-pronged test.' (Citing cases) The first 'prong' requires that the affidavit disclose particular facts or circumstances which justify concluding that the informant is a reliable or trustworthy person. The second requires specific facts or circumstances tending to demonstrate that the informant, in the instance in question, had gathered his information in a reliable manner. The theory...