Mann v. City of Heber Springs, 5141

• Decision Date: 15 November 1965
• Docket Number: No. 5141,5141
• Citation: 239 Ark. 969,395 S.W.2d 557
• Parties: Melvin MANN, Appellant, v. The CITY OF HEBER SPRINGS, Appellee.
• Court: Arkansas Supreme Court

Page 557

395 S.W.2d 557

239 Ark. 969

Melvin MANN, Appellant, v. The CITY OF HEBER SPRINGS, Appellee.

No. 5141.

Supreme Court of Arkansas.

Nov. 15, 1965.

C. E. Blackburn, Heber Springs, for appellant.

Bruce Bennett, Atty. Gen., by Clyde Calliotte, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

Appellant was charged by information with violating the liquor laws. The jury acquitted the appellant of the charge of possessing liquor for sale in a dry county (second offense) in violation of Ark.Stat.Ann. § 48-811.1 (Repl.1964). He was found guilty of possessing more than one gallon of intoxicating liquor in a dry county in violation of Ark.Stat.Ann. § 48-918. The court fixed appellant's punishment at a fine of $200.00, plus costs. For reversal of the judgment upon this verdict the appellant contends that the 'court erred in failing to suppress the evidence obtained in the search and seizure either under an admittedly void search warrant, or the search of an automobile without a warrant.' This motion to suppress was seasonably made.

The local police secured a search warrant to search appellant's combination residence and business for contraband liquor. The appellant was present when the officers arrived at his premises. The search warrant was exhibited to him and an unsuccessful search was made. It is admitted that the search warrant was invalidly issued as being in conflict with Ark.Stat.Ann. § 22-753 (Repl.1962). Immediately following this fruitless search of his premises, the appellant gave the officers the keys to his car in compliance with their request. The car was parked in the street in front of his premises. Appellant accompanied the officers to his parked car where he assisted in opening the trunk compartment. There a case containing 48 half-pints of illegal liquor was discovered.

It is ably urged by the state that appellant's action in surrendering the keys and participating in the opening of the trunk was a consent to the search and thus constituted a waiver of any constitutional requirements of a search warrant. In support of this contention was are cited to numerous cases including our recent decision in Williams v. State, 237 Ark. 569, 375 S.W.2d 375. In this case the information that stolen property was stored in a trailer was volunteered by the accused following which the exact location of the trailer was 'pointed out' to the officers and assistance rendered in removing the stolen articles. We cannot agree that this case or others cited are controlling under the facts in the case at bar. In our view there was no knowledgeable consent to the search of appellant's parked automobile at his premises. This exploration was merely a continuation of and contemporaneous with a search made under an admittedly invalid warrant. This invalidity was unknown to appellant at the time of the search. In 79 C.J.S. Searches and Seizures § 62 b, pp. 820-821 it is said: '* * * Voluntary consent requires sufficient intelligence to appreciate the act as well as the consequence of the act agreed to. Since the constitutional guaranty is not dependent on any affirmative act of the citizen the courts do not place the citizen in the position of either contesting an officer's authority by force or waiving his constitutional rights, but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation, thereto, but is merely a demonstration of regard for the supremacy of the law.'

The state further contends that the search of appellant's automobile was reasonable and, therefore, not in violation of constitutional restrictions. It is true that not all searches and seizures without a warrant are prohibited. Only those searches and seizures which are unreasonable are prohibited by the Fourth Amendment to the United States Constitution and Art. 2, § 15, Arkansas Constitution. We recognize the rule that an automobile may be searched without a warrant where there is reasonable or probable cause for the belief of the officers that contents of the automobile offend against the law. Burke v. State, 235 Ark. 882, 362 S.W.2d 695. There we said that the total circumstances 'all add up to probable cause for the search'. These circumstances consisted of the reputation of the defendant as a bootlegger, his vehicle moving upon the road with the appearance of being heavily loaded, and a strong odor of 'wild-cat whiskey in the car' thus noticeable to the senses of the officers.

In the case at bar the only evidence in support of the existence of reasonable or probable cause to search appellant's automobile was appellant's reputation as being a bootlegger, a 'tip' from a filling station operator to an officer earlier in the day that appellant had purchased gasoline for his car, and that appellant's parked car looked like it was 'a little heavy loaded in the back'. It cannot be said that the appearance of the automobile was any different when the officers entered and searched appellant's premises than afterwards. It is undisputed that it was just as practical to secure a search warrant for the stationary vehicle as it was for appellant's house.

As was said in United States v. Roberts, D.C., 223 F.Supp. 49: '* * * In the last analysis the question of the validity of a given search and seizure must be determined by reference to whether that particular search and seizure were reasonable or unreasonable, and that determination must be made on a case to case basis in the light of all the surrounding facts and circumstances.' In the case at bar there was testimony that the car was searched by the officers because 'we didn't find any whiskey inside the building.' It can fairly be said from the evidence that the failure to discover contraband whiskey in appellant's dwelling was the compelling basis for extending the exploratory search to appellant's parked automobile.

We hold that it was error to refuse appellant's motion to suppress the evidence. Reversed and remanded.

HARRIS, C. J., dissents.

JOHNSON, J., concurs.

JOHNSON, Justice (concurring).

I agree with the majority view. This concurrence is written for the purpose of emphasizing the fact that the protection of the constitutional rights of the least deserving of us is in reality the protection of the constitutional rights of all of us.

Bitter experience through the ages has taught men desirous of freedom that there could be no freedom without the recognition that free men must possess certain inherent and indefeasible rights, amongst which is the right to be secure in their persons, houses, papers and effects.

The authors of our Bill of Rights attested to this great truth when they wrote in the fourth amendment to the Constitution of the United States:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The framers of the constitutions of all of the states have incorporated similar language with the same import in the constitutions of their respective states. The provision in our constitution is Article 2, Sec. 15, and is almost identical to that contained in the Constitution of the United States.

For a number of years this court, while frowning upon unlawful searches and seizures, effectively encouraged the practice by permitting the introduction of evidence illegally obtained in cases being tried by persons who had sworn to uphold the very constitution which specifically prohibited the practice. (For example, see Venable v. State, 156 Ark. 564, 246 S.W. 860; and Woolem v. State, 179 Ark. 1119, 20 S.W.2d 185.)

I was proud on May 25, 1959, when the majority of this court concluded in the case of Clubb v. State, 230 Ark. 688, 326 S.W.2d 816, that the blindfolds of impartiality should be placed back on the Goddess of Justice. There we said:

'The right to be secure against unreasonable searches is guaranteed by Art. 2, Sec. 15 of our Constitution and also, in essentially the same language, by the 4th Amendment to the United States Constitution, yet our Court has followed a rule at variance with the Federal rule regarding the admissibility of evidence obtained by search without a warrant. After careful consideration we have concluded that we will re-examine our former decisions in this connection with a view to changing our announced rule when the question is properly presented to us again.'

This conclusion was reached not in anticipation of nor to conform with some radical decision of the United States Supreme Court but because it was right, and just and proper and the only way to insure the protection of the constitutional rights of all the people to be secure in their persons, houses, papers and effects.

Following the Clubb decision but prior to a proper presentation of the question for our further determination, the United States Supreme Court in the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, held that the fourth amendment to the Constitution of the United States through the agency of the due process clause of the fourteenth amendment governs the subject of searches and seizures in state proceedings.

Admittedly these two opinions have imposed the responsibility upon all law enforcement officers of this state to comply with the simple rules requisite of a lawful search and seizure. It should not be discouraging to our dedicated officials to require of them that they obey the very law they are sworn to uphold. Under our constitutional system the general public has the right to expect no less and demand no more.

In the case at bar, obviously appellant committed the crime with which he is charged. This would seem to place him in the category of those least deserving. This is not an unusual situation. It frequently...