Gatlin v. State

• Decision Date: 28 November 1977
• Docket Number: No. CR77-155,No. 1,CR77-155,1
• Citation: Gatlin v. State, 559 S.W.2d 12, 262 Ark. 485 (Ark. 1977)
• Parties: Howard GATLIN, Jr., Appellant, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 12

559 S.W.2d 12

262 Ark. 485

Howard GATLIN, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR77-155.

Supreme Court of Arkansas, Division No. 1.

Nov. 28, 1977.

Rehearing Denied Jan. 9, 1978.

Murphy & Carlisle, Fayetteville, for appellant.

Bill Clinton, Atty. Gen. by Jackson M. Jones, Asst. Atty. Gen., Little Rock, for appellee.

ROY, Justice.

Appellant, Howard "Butch" Gatlin, Jr., was charged on October 20, 1976, with possession of a controlled substance with intent to deliver. On October 29, 1976, appellant was charged with two counts of theft by receiving. On January 14, 1977, the trial court, after a hearing on the matter, denied appellant's motion to suppress evidence seized from his mobile home pursuant to a search warrant.

On January 17, 1977, a jury found appellant guilty of possession of a controlled substance with intent to deliver and punishment was fixed at five years' imprisonment. On January 31, 1977, after trial to the court appellant was found guilty of theft by receiving. A five-year sentence was imposed and set to run concurrently with the previously imposed sentence.

For reversal appellant alleges it was error for the trial court to deny his motion to suppress.

Appellant first contends it was unnecessary for the search warrant issued here to permit execution at night. The search warrant was issued at 11:25 p. m. on October 19, 1976, and was executed at 11:50 p. m. that same night.

Our review of the record indicates appellant has waived his right to argue this point. At the hearing on the motion to suppress in Case No. CR76-407 the following transpired between appellant's counsel and the trial court:

The Court: Let the record show, now you are not questioning the form of the affidavit or the form of the search warrant? This goes only to the reliability of the informant; is that right?

Mr. Murphy: And to the improper designation of the premises to be searched.

The Court: All right.

Mr. Murphy: Those two questions.

The Court: In other words, the warrant as issued, you are not questioning the authority of the Court to do it?

Mr. Murphy: No, no.

The Court: Those two (2) things?

Mr. Murphy: Two (2) things.

The Court: All right.

This testimony indicates that appellant's counsel did not request a ruling on the propriety of the nighttime search; thus that issue has been waived and cannot be raised on appeal.

Appellant's second allegation is that the search warrant contained insufficient descriptions of the premises to be searched and the property to be seized. The search warrant stated, inter alia :

* * * The Butch Gatlin residence and curtlege (curtilage) and appurtenances and a 1965 or 1966 Ford Fairlane 4 door hard-top automobile, Arkansas license # DTY-110 and 1975 Chevrolet Monza automobile, Arkansas license # ESA-625, located at the premises to be searched. The mobile home is described as a brown and white located just off Arkansas Highway 68B east, Springdale, Arkansas immediately behind a red brick home occupied by Mrs. Eugene Dryer, said brick home and mobile home being on the south side of said highway almost directly opposite the Becker Machine Shop Rd. in Springdale, County of Washington,

Appellant's argument under this issue is largely confined to a discussion of the descriptive errors in the warrant, and it is not denied by appellee that there were several errors in it.

Rules of Crim.Proc., Rule 13.2(b)(iii) (1976) require that a search warrant state or describe with particularity the identity of the person to be searched and the location and designation of the places to be searched.

In Easley v. State, 249 Ark. 405, 459 S.W.2d 410 (1970), this Court upheld as sufficient a description in a search warrant designating premises as ". . . the house occupied by Bud Easley in or near Hiwasse in the County of Benton; . . . ." In that case the following language from 56 C.J. 1233 and 1237 quoted in a Tennessee opinion ¹ was cited with approval:

Moreover, it is held that the word "particularly" in the constitution requiring such a description means that the description must be such that any person familiar with the locality can by inquiring identify the premises described.

* * * Thus since houses in rural communities are commonly known by the name of the owner rather than by any technical legal description, a description of rural property as the premises occupied by a named person may be held sufficient, even though the property is incorrectly described as to section and range. Likewise the description may be sufficient if the farm is named and the particular district disregarded.

In Perez v. State, 249 Ark. 1111, 463 S.W.2d 394 (1971), relied upon by appellant, we held invalid a search warrant which described a multi-unit apartment house but failed to identify the specific apartment to be searched other than by the incorrect name of the occupant. However, in Perez we stated the following which is pertinent to the case before us:

We do not mean to say that an officer unfamiliar with the premises or their location is strictly limited to information given on the face of the warrant to locate the place to be searched. If by reasonable effort or inquiry on the part of the searching officer the property described in the warrant can be located with certainty, the warrant meets constitutional requirements. (Citations omitted.) * * *

Despite descriptive errors the information in the warrant was sufficient to guide the officer executing the warrant to the correct premises. The description in the warrant began with the words "The Butch Gatlin residence," and Sheriff Marshall testified he was specifically looking for that residence. Homes in rural areas are commonly known by the names of the owner rather than by more detailed descriptions. Appellant's mobile home was located on rural property outside the city limits of Springdale, Arkansas. Viewing these facts and circumstances in their totality we find no error on this point.

We do, however, agree with appellant's third ground of error wherein he alleges that property not listed in the search warrant was illegally seized. The warrant listed three items of property, namely "marijuana, T.H.C., ² and amphetamines" as being possessed illegally and commanded a search to be conducted and such property, if found, seized. Pursuant to Rules of Crim.Proc., Rule 13.4(b) (1976) a return of the warrant was made after its execution.

In addition to the drugs which were seized the inventory of property taken during the search included a 19 color TV, a plastic bag containing $807, silver tableware in a red velvet lined walnut case, triple beam balance scales and several firearms.

At appellant's second trial on the charges of theft by receiving, appellant's counsel stated that the objection to the search warrant for the controlled substances also covered the enumerated additional items. ³ Appellant contends there was no...