Cockrell v. State
| Decision Date | 19 February 1974 |
| Docket Number | No. CR,CR |
| Citation | 505 S.W.2d 204,256 Ark. 19 |
| Parties | Bruce Leroy COCKRELL, Appellant, v. STATE of Arkansas, Appellee. 73--139. |
| Court | Arkansas Supreme Court |
Robert L. Shaw and James D. Emerson, Mena, for appellant.
Jim Guy Tucker, Atty. Gen. by Richard Mattison, Asst. Atty. Gen., Little Rock, for appellee.
Appellant was found guilty of grand larceny on a charge of having stolen three guns from the home of the prosecuting witness. The points for reversal which are essential to a determination of the appeal will be set out as they are discussed.
During the night of May 16, 1972, the rural home of Robert Trout was burglarized and three guns were taken therefrom. At around 5:00 a.m. on May 18, Rickey Dale Golden was spotted driving on the streets of Hot Springs in a suspicious manner. Golden was stopped for questioning, at which time the officer saw personal items in the car which further aroused his suspicions. With Golden's permission, the officer looked in the trunk and found two weapons. Golden was taken to police headquarters and there made a statement that he, along with appellant and another, had burglarized the Trout home and took three guns, two of which were found in the trunk of the car. Golden informed the interrogating officer that the car he was driving belonged to appellant. Golden further stated that the third gun would be found in appellant's apartment. The recited information was given to the interrogating officer in the presence of Officer Bob Griffith. The latter officer was instructed to go before the municipal judge and execute an affidavit for a search warrant for appellant's apartment. A search was made and the third gun was found between the mattress and box springs on the bed where appellant was sleeping.
The first point for reversal is that the shotgun found in the bed was illegally obtained by the officers because of a void search warrant. The body of the affidavit for the search warrant reads:
Before Earl J. Mazander, Judge of the Municipal Court of the City of Hot Springs, Arkansas.
The undersigned being duly sworn deposes and says: that he has reason to believe that on the premises known as 210 1/2 Alcorn (garage apt.) County of Garland, State of Arkansas, there is now being concealed certain property, namely; 1--12 ga. shotgun and 1--38 cal. pistol which are stolen from Bob Trout at RR #1, Box 349 in Garland County, Arkansas.
And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: reliable informant states that items are located at above address.
Officer Griffith signed as affiant and the jurat was executed by Judge Mazander.
Officer Griffith testified that Judge Mazander filled in the printed form of affidavit after asking some questions. It is significant that Officer Griffith on cross-examination said the informant was Rickey Golden; that he did not know Golden; and that he had no knowledge of Golden's reliability for the truth.
The affidavit does not pass the tests we have pronounced. 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. . . .'
The State emphasizes the testimony of Officer Griffith to the effect that Judge Mazander asked the deponent several questions. We have held...
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