Moore v. State

• Citation: 244 Ark. 1197,429 S.W.2d 122
• Decision Date: 03 June 1968
• Docket Number: No. 5321,5321
• Parties: James William MOORE, James Thomas Frazier, and Glenn E. Davidson, Appellants, v. STATE of Arkansas, Appellee.
• Court: Supreme Court of Arkansas

Page 122

429 S.W.2d 122

244 Ark. 1197

James William MOORE, James Thomas Frazier, and Glenn E Davidson, Appellants, v. STATE of Arkansas, Appellee.

No. 5321.

Supreme Court of Arkansas.

June 3, 1968.

Rehearing Denied July 15, 1968.

W. M. Herndon, No. Little Rock, and Darrell D. Hickman, Searcy, for appellants.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellants bring this appeal from the judgment of the White Circuit Court convicting them of possession of burglary tools and possession of gambling equipment. Eight points are urged for reversal. The facts pertinent to a decision in this case will be taken up as applicable to the points for reversal, which have been renumbered for purposes of this opinion.

(1) Appellants assert error in the trial court's failure to suppress certain evidence. This contention is based upon the alleged invalidity of the search warrants due to the alleged absence of an oath or affirmation and the asserted lack of probable cause for their issuance.

The record reflects that there were three searches involved and that, with regard to the first, the Sheriff of White County obtained a search warrant to search appellants' motel rooms, the car in which they were traveling and the trailer attached to the car. The sheriff's testimony at the hearing on the motion to suppress and at the trial showed that he had information that appellants were at the motel and that they had burglary tools in their possession. He further stated that his decision to obtain a search warrant was reached after a period of surveillance of appellants' activities in and around the motel room and the car and trailer.

At the hearing on the motion to suppress, the State introduced the search warrants pursuant to which the searches were made. Although appellants subpoenaed the sheriff, several officers who had been involved in the search, and the justice of the peace who issued the warrants, only one person, appellant Glenn Davidson, was called in behalf of appellants. His testimony amounted to little more than a narration of the searches and arrests. No attempt was made to show facts indicative of the alleged lack of probable cause. While appellants contended that the warrants had been issued without oath or affirmation, the only evidence on this point was the testimony of the sheriff, who stated that an affidavit as to the facts and circumstances showing probable cause had been made.

In Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421, we held that where the search warrant is regular on its face and there is no proof that the 'oath or affirmation' was not made prior to its issuance, there is a presumption that all things essential to its validity have been done. It was therefore the duty of appellants to come forward with evidence sufficient to rebut the presumption of validity. Additionally, we note the prevailing view that the burden of proof on a motion to suppress is on the accused. Anderson v. United States, 344 F.2d 792 (10th Cir.1965); People v. Williams, 20 N.Y.2d 388, 283 N.Y.S.2d 169, 229 N.E.2d 839 (1967). In Wilson v. State, 268 P.2d 585 (Okl.Cr.App.1954), the Oklahoma court, in noting that the burden was on defendant on his motion to suppress, said:

'The burden of proving the invalidity of a search warrant rests on the defendant, and where he files a motion to suppress evidence or objects to the introduction of evidence on the ground the search warrant is not valid, he should produce the affidavit and warrant in evidence in support of such motion or objection, or account for the failure to produce and offer other competent evidence to show invalidity.'

See, also, 22A C.J.S. Criminal Law §§ 578 and 657(32)a; Varon, Searches and Seizures, § 6(c). On the state of the facts in the case at bar, we feel that appellants have failed to meet the burden incumbent upon them to show that the first warrant was invalid. The evidence seized as a result of the first search was, therefore, admissible and the motion to suppress properly overruled.

With regard to the second search, appellants contended there was no probable cause therefor. After the first search, Sheriff Davis and his men withdrew from the premises but continued to keep appellants under surveillance, since the sheriff had information that another car was to make contact with appellants for the purpose of transferring burglar tools. During this period between the first and second searches, the wife of a companion of appellants came to the motel. Having been identified by the officers, she subsequently left. Thereafter, appellants got into the car and appeared to be leaving town when they were stopped. On this occasion the appellants were arrested and taken into custody. The result of the search was that a Craftsman Drill, not discovered during the first search, was found.

On the record before us, we feel that the second search was lawful and that the trial court was correct in its ruling that the evidence seized pursuant thereto was admissible. While there are numerous cases which state that a 'return' search, conducted on the basis of the warrant issued for the original search, is not permissible, these cases seem to involve situations where the officers have completely abandoned the premises for a substantial period of time. See, e.g., State v. Moran, 103 W.Va. 753, 138 S.E. 366 (1927); Coburn v. State, 78 Okl.Cr. 362, 148 P.2d 483 (1944); McDonald v. State, 195 Tenn. 282, 259 S.W.2d 524 (1953); State v. Pina, 94 Ariz. 243, 383 P.2d 167 (1963). Such is not the case here. The sheriff and his men, after making the first search and on information that there was to be a subsequent contact with appellants, withdrew from the premises, but maintained constant vigil until such time as the arrests and second search were made. The second search was but a continuation and consummation of the first. There was reasonable cause to believe that other evidence, and possibly other persons, would be involved. The reasonableness of a search in any case must be decided 'on its own facts and circumstances.' Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931). We cannot say that this record reflects an unconstitutional invasion at the time of the second search.

There is another ground on which we find the second search to be lawful and that is that is constituted a search incident to a lawful arrest. The first search had been made and the objects (consisting of two pairs of vice grips, a hand drill, and a pair of rubber gloves) lawfully seized. The officers thus had probable cause to arrest appellants for the crime of possessing burglary tools. Ark.Stat.Ann. § 41--1006 (Repl.1964). While it might be better procedure to make an arrest immediately upon seizure of evidence, we hesitate, on the peculiar facts and circumstances of this case, to say that it was unreasonable for the officers to delay the arrests until such time as it appeared that no other parties were involved. The arrests being lawful, the officers acted within the bounds of reason in searching the immediate premises under the control of appellants. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Although there is sufficient justification for holding that the arrests occurred as soon as the officers stopped the car in which the appellants were traveling, this would appear to be insignificant, since, in any event, the search and the arrests were 'substantially contemporaneous.' Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); State v. Hoover, 219 Or. 288, 347 P.2d 69, 89 A.L.R.2d 695 (1959). Moreover, the fact that we are here concerned with the search of an automobile is significant. The courts, both federal and state, have long distinguished between searches of dwellings and vehicles. In the case of vehicles, the validity of the seizure is not dependent upon the right to arrest, but rather upon the reasonable cause the seizing officer has for the belief that the contents of the automobile offended against the law. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Burke v. State, 235 Ark. 882, 362 S.W.2d 695; Mann v. City of Heber Springs, 239 Ark. 969, 395 S.W.2d 557. For the reasons herein stated, we find that the second search was valid and reasonable under the circumstances of this case.

Appellants contended also that there was impropriety in the third search which was carried out on the following day pursuant to another search warrant. Apparently, the basis for their contention is that there existed no probable cause for issuance of the warrant. The record indicates that during the course of the previously described searches, the sheriff observed a peculiar looking table which was wired, two large batteries, and another box containing 'some kind of device to operate the magnetism on the table.' His suspicion that a gaming device had been uncovered was buttressed by the discovery of several pairs of dice in the suitcase of one of the appellants. The sheriff did not immediately take any action with regard to the table and the supporting apparatus, but waited until after the second search, at which time he radioed in to headquarters, instructing that a separate search warrant be obtained pursuant to Ark.Stat.Ann. § 41--2009. The sheriff testified that he subsequently made an affidavit stating the facts constituting probable cause.

As in the case of the warrant for the first search, appellants have made no attempt to show that probable cause was lacking for the issuance of the warrant. It must therefore be held that they failed to meet the requisite burden of proof. Moreover, it is clear from the facts above stated that the gaming table was observed in open view at a time when the officers were lawfully on the premises conducting the...