Clinkscale v. State, CA

• Decision Date: 12 December 1984
• Docket Number: No. CA,CA
• Citation: 680 S.W.2d 728,13 Ark.App. 149
• Parties: Robert Earl CLINKSCALE, Appellant, v. STATE of Arkansas, Appellee. CR 84-81.
• Court: Arkansas Court of Appeals

Page 728

680 S.W.2d 728

13 Ark.App. 149

Robert Earl CLINKSCALE, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 84-81.

Court of Appeals of Arkansas Division I.

Dec. 12, 1984.

Wilson, Hays, O'Hara & Myers by John David Myers, North Little Rock, for appellant.

Steve Clark, Atty. Gen. by Michael E. Wheeler, Asst. Atty. Gen., Little Rock, for appellee.

CLONINGER, Judge.

This appeal from appellant's criminal conviction consists of four points for reversal. We find no error on the trial court's part with respect to any of the points raised, and therefore we affirm.

Appellant was charged with theft by receiving under Ark.Stat.Ann. § 41-2206 (Repl.1977) following his arrest for the possession of a stolen gold Rolex wrist watch. The prosecutor also sought sentence enhancement under the terms provided for habitual offenders at Ark.Stat.Ann. § 41-1001.

At an omnibus hearing held before the trial, the lower court granted appellant's motion to suppress the admission of the watch as evidence on the grounds that it had been seized without a search warrant in violation of the Fourth Amendment. Two days later the trial court reconvened the omnibus hearing after the State had filed a brief requesting reconsideration of the matter. The court heard the testimony of a jeweler who said that appellant had brought the watch to his shop, claimed that it was "hot," and asked to have the serial numbers removed. The police officer who received the watch from the store manager was examined, as well. At the conclusion of the hearing the court reversed its earlier ruling and denied appellant's motion to suppress the watch.

The case was tried to a jury, and appellant was found guilty of theft by receiving. The value of the watch was determined to be in excess of $2,500, rendering the crime a class B felony pursuant to § 41-2206(5)(a). Before the jury went on to consider sentence enhancement under the habitual offender statute, the members were polled at appellant's request. During the polling, one of the defense witnesses, with the verbal encouragement of appellant, asserted that one of the jurors was a prostitute. The court admonished the jury not to allow the outburst to affect their sentencing decision, and two jurors acknowledged that their decision would indeed be affected. Appellant moved for a mistrial. The court allowed the sentencing phase to proceed and postponed consideration of the motion.

Upon its return, the jury stated that it had "agreed unanimously not to fix the sentence and to allow the judge to fix the sentence if possible." Appellant objected that the court had access to prejudicial information. The court then passed judgment under the provisions of Ark.Stat.Ann. § 43-2306 (Repl.1977), sentencing appellant to fifteen years in the Arkansas Department of Correction and assessing a $10,000 fine. From that decision this appeal arises.

Appellant argues first that the court erred in denying the defense motion to suppress the introduction into evidence of the gold Rolex watch. He claims that the seizure without a search warrant violated his Fourth Amendment rights. The court's denial of appellant's motion was grounded on two reasons: (1) when appellant, as bailor, gave the property to the jeweler, as bailee, he gave him apparent authority to act with reference to that property under the circumstances; (2) the jeweler made a telephone call to the police officer informing him that the serial numbers might soon be removed, thus justifying a warrantless seizure under exigent circumstances.

It is appellant's view that he retained an expectation of privacy in the gold watch despite any apparent authority vested in the jeweler. He relies on United States v. Butler, 495 F.Supp. 679 (E.D.Ark.1980), a case dealing with third party consent to the warrantless search of a bureau drawer and a locked suitcase discovered in the defendant's room. The federal court held that the defendant had a reasonable expectation of privacy in the drawer and suitcase and that his father had no lawful authority to consent to the search. The court laid particular emphasis on the absence of exigent circumstances.

We believe that the circumstances of the present case distinguish it from Butler supra. Appellant's reasonable expectation of privacy in the gold watch was considerably diminished when he delivered it to a jeweler with instructions to efface the serial number and to add decorative designs. These directions entailed the shipping of the watch to New York for the requested alterations. Jewelers in both Little Rock and New York thus had access to the watch, and, while appellant's expectation of privacy may have continued, the reasonableness of the expectation cannot be said to have been of the same degree as that of the defendant in Butler. A watch openly delivered to a jeweler in a business open to the public is not the same thing as a closed bureau drawer or a locked suitcase in a private residence.

Third person authority may be based upon the fact that the third person shares with the absent target of a search a common authority over, general access to, or mutual use of the place or object sought to be inspected under circumstances that make it reasonable to believe that the third person has the right to permit the inspection in his own right and that the absent target has assumed the risk that the third party may grant this permission to others. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); United States v. Butler, supra. In the instant case, for the purposes of the bailment, appellant and the jeweler shared common authority over and general access to the watch in question. The jeweler, moreover, initiated the contact with the police, not the other way around. As manager of the shop, the jeweler was clothed with ample authority to notify the police of suspicious circumstances surrounding goods brought to his place of business. In fact, if the jeweler had followed the instruction of appellant without notifying the police, the jeweler may well have become a participant in the crime. Appellant had voluntarily surrendered the watch to the jeweler, expecting that he would do whatever would be necessary to comply with his instructions regarding the changes he wished to be made. The fact that appellant told the jeweler the watch was "hot" clearly indicates that he did not regard the issue of privacy as being of the first importance; it further supports our conclusion that appellant extended sufficient authority to the jeweler to consent to the taking of the watch by the police.

Appellant attacks the trial court's finding of exigent circumstances, contending that the time between the police officer's conversation with the jeweler and the seizure of the watch on the following day provided more than enough opportunity for the officer to obtain a warrant. Yet, as the United States Supreme Court observed in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974): "The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation's necessitating prompt police action." A real danger existed in the present case that the watch seized might have been altered beyond recognition if not destroyed. Although Cardwell, supra, applied to the seizure of a car, the concept of...