Cox v. State

• Decision Date: 12 March 1973
• Docket Number: No. 5802,5802
• Citation: 254 Ark. 1,491 S.W.2d 802
• Parties: Charles Etta COX, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 802

491 S.W.2d 802

254 Ark. 1

Charles Etta COX, Appellant, v. STATE of Arkansas, Appellee.

No. 5802.

Supreme Court of Arkansas.

March 12, 1973.

Rehearing Denied April 16, 1973.

R. W. Laster Little Rock, for appellant.

Jim Guy Tucker, Atty. Gen. by Frank B. Newell, Asst. Atty. Gen., Little Rock, for appellee. HARRIS, Chief Justice.

On September 1, 1970, appellant, Charles Etta Cox, was arrested in Grant County, Arkansas, and charged by Information with Grand Larceny. Preceding her trial on February 28, 1972, a hearing was conducted on her motion, earlier filed, to suppress certain evidence. Appellant called one witness, Trooper James Hale for this hearing, although the motion had raised issues relating to the absence of a search warrant, the absence of probable cause to justify the arrest, the unreasonableness of the search, and the authority of the officers to seize the property which was involved. The court denied the motion, and the case proceeded to trial; at the conclusion of the evidence, the jury retired and found appellant guilty, fixing her punishment at ten years confinement in the Arkansas Department of Correction. From the judgment so entered, appellant brings this appeal. Trooper Hale, in chambers, testified that he received a radio report from Deputy Sheriff A. J. Pitts concerning suspected shoplifters, the deputy giving a description of the occupants of the car, and the automobile in which they were riding. The officer stopped a 1956 Mercury which conformed to the description given and which was occupied by three black female adults and two children, on Highway 270 in Grant County, travelling toward Pine Bluff. Two bags ¹ were in sight on the floorboard on the right hand side of the front seat, and were open at the top, disclosing merchandise, including clothing. The car was being operated by appellant and the trooper directed that it be driven back to Sheridan. The bags were taken out of the car and subsequently, after acquiring a search warrant, the car was thoroughly searched, but no additional contraband found.

The property taken from the car was offered as exhibits. The court asked the trooper if the bags described were in open view to him, to which Hale responded 'They were. They could be seen from the outside of the vehicle.' The motion to suppress was denied. Hale subsequently testified that the car was stopped between 5:00 and 6:00 P.M. and that the automobile was being driven by appellant. An older woman was sitting in the front with her and a younger woman was in the back seat with the children. After arriving back at Sheridan, Mrs. Olga Winkle, the owner of the store, identified the merchandise as coming from her store. She testified that the value of the property was One Hundred and Four Dollars and a few cents. ² Barbara Pruitt, employed at the store by Mrs. Winkle, testified that on September 1 she was the only clerk in the store, had several customers, and three black women came in, 'mingled around in the store', then all separated, going to different places in the store, and, according to the witness, stayed quite a while. She identified appellant as one of the persons in the store. She said that she asked them several times if she could help and 'when they finally left I got to checking around and found a box, you know, that had been merchandise, had been taken out of it and the box thrown under the counter.' This box had contained lingerie. She said the women made no purchases.

Barbara Bradshaw operates a beauty shop across the street and she stated that Mrs. Winkle was in the shop having her hair fixed. She noticed a red and white 1955 or 1956 Mercury stopped in the front, noticing it because a small child kept honking the horn. Subsequently, around 5:00 or 6:00 P.M. she saw the same automobile parked in front of the store. Mrs. Winkle testified that, while sitting in the beauty shop, she observed the automobile and saw three black women get out of the car and go into her store. Subsequently, the persons returned and she saw appellant, who appeared to be carrying a shopping bag, get into the car and drive off. Upon returning to her establishment, she was shown the empty box which had contained merchandise just received. ³ Thereupon, she called Deputy Sheriff Pitts and described the car to him. Later in the afternoon, she identified appellant as the person who got into the car while she (the witness) was in the beauty shop, and she identified appellant at the trial as the same person. Mrs. Winkle stated that when she arrived in the evening, the car was being unloaded and the officers brought in pillow cases full of merchandise and a lot of merchandise fell out of one of the containers. ⁴

Deputy Pitts, relative to receiving information, testified:

'I believe she called in by phone and told me what had happened about a shop lifting. She thought she had been shop lifted over there and she had information the type car and occupied by people and described them to me and I in turn gave it to Trooper Hale to be on the lookout for this vehicle.'

The deputy stated that when the car was driven back to the courthouse, permission was sought to look in the vehicle and they were told it was all right. He said tags were still on the merchandise. Sheriff Lewis Shirron also testified that the merchandise was new, still had the tags, sizes, etc., and he identified appellant as being present. When the merchandise was identified by the owner, appellant was arrested and subsequently charged with grand larceny.

It is first argued that appellant's motion to suppress should have been granted, appellant contending that the evidence was illegall seized, it being stated that she was not under arrest at the time and that there was no search warrant when the property was taken from the car. Appellant asserts that the court apparently relied upon what is commonly referred to as the 'plain view rule', but that this rule cannot be relied upon in the present instance. Appellant cites Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, as pointing out that the use of 'plain view' as a descriptive phrase is not coterminous with its use as a legal concept and that before this doctrine comes into effect, there must be a justifiable prior intrusion. Appellant argues that though the visual observation was legitimate, it did not justify the intrusion itself, but only furnished probable cause for the issuance of a search warrant. Actually, in Coolidge, the court held there were no exigent circumstances justifying the warrantless search of a car there involved, and it was pointed out that the 'plain view' theory did not apply where the police had ample opportunity to obtain a valid warrant, knew in advance the car's description and location, had every intention of seizing it when they entered upon the petitioner's property, and no contraband or dangerous objects were involved. A contrary result was reached in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; and Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. In these cases, a warrantless search and seizure of evidence was approved because of the exigencies of the situation. In Chambers, a warrantless search of a car was made, resulting in a seizure of evidence. This car at the time, had been taken to a police station, but the court noted that it could have been searched on the spot where it was stopped since there was probable cause to search and it was a fleeting target for a search. The court added that the probable-cause factor was still in existence at the station house and it was commented that the mobility of the car was still present; the court said that in terms of practical consequences, there was little to choose between an immediate search without a warrant, and the car's immobilization until a warrant was obtained. 'Given probable cause to search, either course is reasonable under the Fourth Amendment.' In this opinion, the court also stated:

'In terms of the circumstances justifying a warrantless search, the Court has long distinguished between an automobile and a home or office. In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the issue was the admissibility in evidence of contraband liquor seized in a warrantless search of a car on the highway. After surveying the law from the time of the adoption of the Fourth Amendment onward, the Court held that automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.'

However, in Ker the court upheld a warrantless search and seizure of evidence because of exigent circumstances at a home; likewise in Warden, the court upheld an entry into a suspect's house and a...