Daigger v. State, CR

• Court: Arkansas Supreme Court
• Writing for the Court: HICKMAN; PURTLE; FOGLEMAN, C. J., and MAYS; PURTLE; FOGLEMAN; I am authorized to state that MAYS
• Citation: Daigger v. State, 595 S.W.2d 653, 268 Ark. 249 (Ark. 1980)
• Decision Date: 17 March 1980
• Docket Number: No. CR,CR
• Parties: Daniel Albert DAIGGER, Donna Sue Daigger, and David Burl Taylor, Appellants, v. STATE of Arkansas, Appellee. 80-31.

Page 653

595 S.W.2d 653

268 Ark. 249

Daniel Albert DAIGGER, Donna Sue Daigger, and David Burl Taylor, Appellants, v. STATE of Arkansas, Appellee.

No. CR 80-31.

Supreme Court of Arkansas.

March 17, 1980.

Rehearing Denied April 14, 1980.

McArthur & Lassiter, P. A., Little Rock, for appellants.

Steve Clark, Atty. Gen. by Dennis R. Molock, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Daniel Albert Daigger, Donna Sue Daigger, and David Burl Taylor were convicted in Pulaski County Circuit Court of delivering LSD. Daniel Albert Daigger received a ten-year sentence. Donna Sue Daigger and Taylor received ten-year sentences with five years suspended. Their appeal raises three issues. First, they argue the trial court should have granted them a continuance so they could find and call as a witness, Jimmy Cahill, a police informant. Second, appellants argue the police illegally searched both the Daigger vehicle and Taylor. Third, Taylor alleges there was not enough evidence to convict him.

On appeal, the facts are not seriously disputed. Cahill introduced police undercover agents to Taylor at a bowling alley. The officers tried to buy some LSD from Taylor, but they could not agree on a price. Taylor took them to the Daiggers. A sale was made. Each of the Daiggers received $20.00. In response to a radio message from the officers making the purchase, another officer in the area arrested and searched Taylor shortly after the Daiggers left. In the meantime, a call was made to other policemen to stop the Daiggers' vehicle and arrest the Daiggers. They were arrested and their vehicle was searched. A search of Mrs. Daigger's purse, which was found between the front seats of the vehicle, uncovered LSD.

On the day the trial began, the appellants made an oral motion for a continuance to allow the State to furnish them Cahill's address. The trial judge denied the motion. We affirm his decision. A continuance need only be granted upon a showing of good cause. Rules of Crim.Proc., Rule 27.3. A denial of a continuance will not be reversed absent a clear abuse of discretion. Russell & Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). We find none here. The appellants knew Cahill's name and had ample opportunity, either through their own investigation or a specific discovery request, to find him before the trial began.

Neither do we believe the trial judge erred in admitting evidence, specifically the contents of Donna Sue Daigger's purse, found in the search of her vehicle. This kind of search is authorized by Rules of Crim.Proc., Rule 12.4:

(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.

(b) The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.

The appellants, citing Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977) aff'd 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), argue the search of the purse violated the Fourth Amendment's prohibition of unreasonable searches and seizures. In Sanders we held a suitcase, which was seized from the locked trunk of a taxicab could not be searched. Sanders is not directly on point. The search here was of a purse found between the two front seats inside the vehicle. We compare this search favorably with a search which we upheld in the case of Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571. More importantly, we believe this particular search, conducted immediately after the Daiggers had made an illegal drug sale to the officers, and made contemporaneously with their arrest, was not unreasonable.

We do not decide the propriety of the search of Taylor. The conduct ascribed to him simply cannot, under our cases, be considered delivery of LSD. We held in Bowles v. State, 265 Ark. ---, 579 S.W.2d 596 (1979), that a man who simply introduced the buyer to the seller was not guilty of delivery. The middleman must take a more active part to be a principal or even an accomplice. For example, in Curry v. State, 258 Ark. 528, 527 S.W.2d 902 (1975), the conviction of such an individual was upheld. There Curry took the money and returned with the drugs. Here we affirm the Daiggers' conviction but reverse Taylor's and dismiss the charges against him.

Affirmed in part.

Reversed in part.

PURTLE, J., concurs.

FOGLEMAN, C. J., and MAYS, J., concur in part and dissent in part.

PURTLE, Justice, concurring.

I concur with the majority completely as to the opinion as it relates to appellant, David Burl Taylor. I concur with the result as to the Daiggers but wish to state my reasons in slightly different terms.

First, the majority properly cites and interprets the Rules of Crim.Proc., Rule 12.4(a) and (b), for convenience to the reader is set out as follows:

(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.

(b) The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.

Daigger was in apparent control of the vehicle. The officers had reasonable belief that the vehicle contained things connected with the offense for which the arrest was made. The officers had paid for the LSD with marked bills, and they were in sight of the Daiggers until the arrest. The purse was in the passenger compartment of the vehicle in plain view of the arresting officers, and the search was made contemporaneously with the arrest. These facts fit squarely into the plain wording of the above rule.

In Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977) aff'd 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the suitcase searched was found in the trunk of the vehicle after the vehicle was parked. I believe both this Court and the United States Supreme Court held such a search was not a "vehicle exception" search. We recently reached the same result in Moore v. State, Ark., 594 S.W.2d 245 (March 3, 1980), wherein we held a shaving kit located in a hidden place, which took about 20 minutes to locate, was not a search within the "automobile exception." In Moore the vehicle had been secured, and the accused was handcuffed and was in another vehicle at the time of the search. There were no exigent circumstances in either Sanders or Moore.

In the present case, the officers had concrete facts to base their belief that this vehicle contained not only the marked money but also additional LSD. The present case is similar to the fact situation in Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979), in which there was a very dangerous fact situation confronting the officers. Also, the purse was in the passenger compartment of the vehicle in plain view of the officers.

It appears to me when the search of an automobile is contemporaneous with the arrest and the arresting officers have facts upon which to reasonably believe things connected with the offense are contained in the passenger compartment of the vehicle, the officers are authorized to look into the vehicle. If the things which they have probable cause, based upon facts known to them, to believe are in the vehicle are seen by them, the search is reasonable. However, when the vehicle is secured or the container to be searched is within the exclusive control of the arresting authorities and there are no exigent circumstances and no danger of harm to anyone or loss of the items sought, a warrant is required. If this reasoning is applied, I do not see any conflict between Sanders, supra, Moore, supra, and the case before us.

For the above reasons I concur with the majority opinion.

FOGLEMAN, Chief Justice (concurring in part, dissenting in part).

It is extremely hard to have any sympathy for a "dope peddler." That is not what is involved here. The very foundation of this nation rests upon the theory of equality before the law. This theory has been engraved in our constitutions. Constitution of the United States, Amendment Fourteen; Constitution of Arkansas, Art. 2, §§ 2 and 3. The principle was stated in our constitution of 1868, which became effective before the Fourteenth Amendment to the United States Constitution was declared to have been ratified. If equality before the law is to be meaningful, or actually if it is to be preserved, the "dope peddler" must be afforded the same constitutional protections available to citizens in the highest and most respected positions. Otherwise, erosion will wash the principle away, just as it will eventually wash away the hardest stone.

A basic constitutional right is the right to be free from unreasonable searches and seizures. Constitution of the United States, Amendment Four; Constitution of Arkansas, Art. 2, § 15. The provisions are stated in identical language, i. e., "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, . . . ." It is notable that the right is not restricted to some people or to law-abiding people. It is also significant that all people, including law violators, have the same right to be secure in their effects as they have in their persons...