Loomis v. State, CR77-30

• Decision Date: 13 June 1977
• Docket Number: No. CR77-30,CR77-30
• Citation: 551 S.W.2d 546,261 Ark. 803
• Parties: Phillip Wayne LOOMIS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 546

551 S.W.2d 546

261 Ark. 803

Phillip Wayne LOOMIS, Appellant, v. STATE of Arkansas, Appellee.

No. CR77-30.

Supreme Court of Arkansas, In Banc.

June 13, 1977.

Don Langston and Hubert E. Graves, Fort Smith, for appellant.

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

FOGLEMAN, Justice.

Appellant Loomis was found guilty of the crimes of rape and burglary alleged to have been committed on 3 March, 1976. He alleges three points for reversal, but concedes that one of them depends entirely upon the other two. Since that is so, we will discuss only two points, i. e., alleged error in denying his motions to suppress evidence, first, of fingerprint identification, and then, of his confession. We find merit in neither point and affirm.

Appellant first contends that his fingerprints were taken by illegal detention and the resulting evidence incriminating him was the fruit of the tree thus poisoned, relying entirely on Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). He argues that this action is in violation of the Fourth and Fifth Amendments to the U.S. Constitution and Art. 2 §§ 8 and 15 of the Arkansas Constitution. We find no violation of either constitutional provision of either constitution and find this case outside the orbit of Davis. The questioning of Loomis and the taking of his fingerprints were not a part of a "dragnet" operation of the type conducted in Davis, and there was no detention of Loomis for the sole purpose of obtaining fingerprints. The distinctions here outnumber the similarities.

In this case, a well organized investigation, which consumed some 2400 man-hours, was being conducted in the southwestern part of Fort Smith because a series of rapes had taken place in the area in late 1975 and early 1976. The crimes, as reported, fell into a pattern and identifying features given by victims were of considerable similarity. They described a white male, approximately 5'7 to 5'10 (or not over 6') tall, of medium build, 25 to 30 years of age, weighing 160 to 180 pounds, with short curly hair, and a noticeable body odor, who smelled strongly of cigarettes. A composite drawing of the suspect was made and released to the news media in early March. This drawing was published in a local newspaper. In response, the Fort Smith police department received a number of calls giving the names and addresses of possible suspects. A field investigator went out to locate and interview each such suspect. In all, 177 were interviewed. Of these, 55 were brought to the police department, interviewed and photographed. Only seven of these, one of which was appellant, were fingerprinted. Appellant's prints matched latent prints which had been taken at the dwelling of the victim in this case. The charge on which appellant was convicted was filed on the day the Fort Smith police department was advised by teletype message from the Federal Bureau of Investigation that comparison of the Loomis fingerprints with those taken at the scene of the crime here charged were "positive for identification."

The investigation of Loomis came about as a result of the rape of a different victim that was reported at about 4:00 a. m. on March 23, 1976. Detective Sgt. Hatfield arrived at the scene at 4:19. Officer William Champion, in answering the call stopped a motor vehicle driven by Loomis at a high rate of speed approximately 11 blocks from the scene of this alleged rape. Champion stopped the vehicle and asked for the driver's license. Loomis told Champion he was going to Jenny Lind and Phoenix to meet his brother and take him to work at Southern Steel & Wire Company. Loomis was barefoot, and had a noticeable body odor, described by Champion as a "sweaty, unwashed" type body odor. Champion said that Loomis fit the description of the rapist given police. He noted two things to which he had been alerted in department briefings Kool cigarettes in Loomis's car ¹ and a lisp in his voice. When Loomis left, he went in the wrong direction for the mission he had indicated. Champion proceeded to the address of the reported rape without passing any other vehicles. He wrote up an interview report.

When Sgt. Hatfield learned of Champion's encounter with Loomis and Champion expressed the opinion that Loomis was a prime suspect in the incident that had occurred that morning, Hatfield and Officer Hammond went to the address Loomis had given, attempting to locate Loomis. Hatfield had learned from other officers that Loomis was staying at his mother's apartment there with a man named James Anderson, but overlooked the fact that one half of a pair of tweezers bearing the initials "J. A." had been found at the scene of one of the rapes.

When Hatfield and Hammond did not see the vehicle Loomis had been driving at the address he had given, they did not stop, but returned at 8:30 a. m., and, having then seen the vehicle there, went to the door and asked for Loomis. His mother had come to the door. She said that she would get him. When Loomis came to the door a few minutes later, Hatfield asked if he would mind coming to the police department and talking to the officers. Appellant agreed to do so, and, after he went back into the house to dress, was taken there in an unmarked police vehicle, without having been placed under any type of physical restraint, searched or even frisked.

He was taken into an interview room, advised of his rights, told that he was a suspect, and interviewed for 2 1/2 hours. The officers said that Loomis was nervous, vague and evasive during this interview. Toward the end of this session, he was asked to submit to the taking of photographs and fingerprints. He consented and the prints then taken were forwarded to the FBI. Loomis was asked by Hatfield if he would take a polygraph test, who said he would "cut him loose if he passed it." Loomis had not previously requested an attorney, but at this point said that he did not want to take this test until he talked with an attorney. The officers then took Loomis to the public defender's office, and advised Mr. Graves, Deputy Public Defender, of the situation. After Loomis emerged from the office of Graves, where there had been a private consultation between him and Graves, Loomis told the officers that he had been advised to stay away from the polygraph if he was guilty but to take it if he was innocent. He agreed to return to the police department for this test at 2:00 p. m. and was taken home by Officer Hammond. Before Loomis was taken home, James Anderson, who had been waiting at the police department and who accompanied Loomis and the officers to the Loomis residence, was allowed to talk with Loomis. When Loomis did not appear for the polygraph test, the officers did not investigate until the following day, when they learned that Loomis "had packed up everything and left" after he returned from the police department.

None of the testimony of the officers was refuted. Loomis did not testify at the in camera hearing on the motions to suppress. The evidence in this case simply does not show the "investigatory seizure" or detention that characterized the Davis situation. Furthermore, even though the officers did not feel that they had probable cause to arrest Loomis at the time of the interview during which the fingerprints were taken, Loomis, unlike Davis, had become the primary focus of the investigation.

The police procedures in this instance were far different from those employed in Davis. The only description the officers had of the rapist in that case was that he was a negro youth. The suspect there was only 14 years of age. The only reason for his being a suspect was the fact that he had occasionally been employed by the victim as a yard boy. He was exhibited to her on several occasions but she never identified him as her assailant. The state there not only conceded that the police had no probable cause for the detention of the accused, but never contended that the accused voluntarily accompanied the police to headquarters or willingly submitted to the taking of his fingerprints. The state only contended that the detention was during the investigatory, not the accusatory, stage and that probable cause is not required for detention for the sole purpose of taking fingerprints. Here, the testimony that Loomis voluntarily accompanied the police officers to the police department and voluntarily submitted to the taking of his fingerprints is uncontradicted. The reasons for police questioning of Loomis and being interested in taking his fingerprints at least approached probable cause for his arrest; but, at this stage, the police officers were properly acting cautiously and with admirable restraint. We find Davis wholly inapplicable.

When we view the totality of the circumstances surrounding the confession of Loomis, we cannot say that the finding of the circuit judge that it was voluntarily given was clearly against the preponderance of the evidence. Appellant contends that it resulted from his illegal detention on March 13, 1976, and that, when it was given, he was denied the assistance of counsel and was promised psychiatric help if he made a statement.

After the charge was filed and a warrant issued, Loomis was taken into custody in Hot Springs. Detective Sgt. Brooks was dispatched, along with Sgt. Roscoe Smith, to return Loomis to Fort Smith. As soon as Brooks saw Loomis, he advised Loomis of his constitutional rights and received an affirmative answer when he asked whether Loomis understood those rights. Loomis was advised of the crime with which he was charged and asked if he wanted an attorney. He did not request an attorney at that time. Loomis asked Brooks what kind of evidence they had against him, but Brooks told him they were not at liberty to explain that to him at the time.

The Fort Smith officers took custody of Loomis at 1:05 p. m. They arrived at the Fort Smith police...