Moore v. State

• Decision Date: 14 March 1977
• Docket Number: No. 2,No. CR76-211,CR76-211,2
• Citation: 551 S.W.2d 185,261 Ark. 274
• Parties: James E. MOORE, Appellant, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 185

551 S.W.2d 185

261 Ark. 274

James E. MOORE, Appellant, v. STATE of Arkansas, Appellee.

No. CR76-211.

Supreme Court of Arkansas, Division No. 2.

March 14, 1977.

Supplemental Opinion On Rehearing May 31, 1977.

Bill E. Ross, Public Defender, Blytheville, for appellant.

Bill Clinton, Atty. Gen. by Terry R. Kirkpatrick, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

James E. Moore was convicted of rape in Mississippi County Circuit Court and sentenced to life imprisonment.

On appeal he alleges two errors: certain physical evidence, the product of an unlawful search and seizure by the police officers, was admitted into evidence; his statement was improperly admitted into evidence because the police obtained it after confronting him with the evidence and despite his indication he wanted counsel.

The testimony during the trial revealed that Moore late at night went to the victim's boarding house. She knew Moore and tried to dissuade him from entering her house. Moore pulled a gun, forced his way in, robbed her, raped her and shot her at least twice. A boarder in her house discovered her early the next morning and called the police. The police arrived on the scene and called an ambulance. The victim was taken to the hospital's emergency room where she told the police who had raped, robbed and shot her. The police immediately went to the home of Moore's parents, arriving there at about 7:00 a. m. Two officers covered the back entrance and two officers entered the front of the house. Although the facts are somewhat disputed, at least one officer had a shotgun in his hand when they entered the house. The officers testified that Moore's parents consented to their entry and a search of the premises; Moore's parents disputed the officers' testimony. The officers went into a bedroom and found Moore asleep. They immediately arrested him and he was taken to jail. The officers remaining on the scene proceeded to search the house. In a room adjacent to Moore's bedroom, they found a .32 pistol hanging on the wall and a purse containing papers which belonged to the victim. In Moore's bedroom they found a gun, some clothes and other articles under his bed.

Even though the officers testified that they had the oral consent of Moore's parents to search the house, a list of the items seized was not given to Moore's parents as required by Arkansas law. See Rules of Crim.Proc., Rule 11.4 (1975).

The next day an officer obtained a statement from Moore. He showed Moore the evidence that was seized at the time of the arrest. When Moore was advised of his rights, he indicated that he would like to have a lawyer. He started to call a lawyer but stated that he did not have the money to hire a lawyer. The interrogating officer did not explain Moore's right to counsel and proceeded to question Moore. Moore made a statement implicating himself in the crime. The statement and all of the physical evidence taken from Moore's house were admitted into evidence by the trial court.

The police were certainly justified in immediately entering the house to arrest Moore. The victim had stated she knew Moore and apparently there was no problem in identifying the suspect. The state argues that Moore's parents consented to the search and that the search was necessary to prevent the destruction of evidence. These two arguments hardly merit discussion. Two police cars containing four officers surrounded the house of Moore's parents early in the morning and two officers entered the front door with at least one of them having a drawn weapon. Under such circumstances, the state must prove that the consent was, in fact, freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). White v. State, 261 Ark. 23, 545 S.W.2d 641 (1977). The proof falls far short in this instance. There is no evidence in the record to support the argument that the search was necessary to prevent destruction of the evidence. There is no reason one of the officers could not have obtained a search warrant while the other officers remained at the scene.

Even though the officers did not have a search warrant or legal consent to search the premises, the law permits a search of the area within the immediate control of the person arrested. See Rules of Crim.Proc., Rule 12.2. The purpose of this rule is to permit officers to seize weapons or evidence within the reach of the suspect which might be destroyed. Several items of evidence were found in Moore's bedroom. However, a search of the rest of the house turned up a .32 pistol and a lady's small purse, which contained documents. We hold that only those items in Moore's bedroom were lawfully seized and all other evidence was improperly seized.

The U.S. Supreme Court discussed a similar situation where a search was made without a search warrant or consent. Chimel v. California, 395 U.S. 752, 89 S.Ct. 20, 34, 23 L.Ed.2d 685 (1969). In the Chimel case the court stated:

There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The "adherence to judicial processes" mandated by the Fourth Amendment requires no less.

The statement taken from Moore was obtained after he had been shown the evidence which was seized at his parents' home. Since part of the evidence was illegally seized, the statement is not admissible. See Walton & Fuller v. State, 245 Ark. 84, 431 S.W.2d 462 (1968).

In addition, when Moore was questioned he indicated he wanted a lawyer. We have made it quite clear that if an individual indicates in any manner prior to his statement, or during his interrogation, that he wishes to exercise his rights, the interrogation must cease. Webb v. State, 258 Ark. 95, 522 S.W.2d 406 (1975). Davis v. State, 243 Ark. 157, 419 S.W.2d 125 (1967).

The judgment is reversed and this cause remanded for a new trial consistent with this opinion.

Reversed and Remanded.

We agree. HARRIS, C. J., and FOGLEMAN and ROY, JJ.

SUPPLEMENTAL OPINION ON REHEARING

BYRD, Justice.

On rehearing appellant points out that no search of the premises was made until after he was arrested and removed from the premises. He then contends that the evidence seized by the officers in his bedroom should also be suppressed. We must agree with appellant on both contentions.

The record shows through both Captain Denver Johnson and Detective Claybourn Hicks that the appellant was not present when the search of his home began. Captain Johnson testified that they did not start the search until after appellant was taken to jail and Detective Hicks testified that appellant was on his way to the police department at the time of the search.

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the State sought to justify a search of the house as being incident to an arrest. In reversing the conviction and holding the search unlawful, the Court said:

" . . . Clearly, the general requirement that a search warrant be obtained is not lightly to be dispensed with, and 'the burden is on those seeking (an) exemption (from the requirement) to show the need for it . . ..' "

" * * * When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the [261 Ark. 278-B] officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control' construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The 'adherence to judicial processes' mandated by the Fourth Amendment requires no less."

Again in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Court reiterated:

"Thus the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.' The exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' '(T)he burden is on those seeking the exemption to show the need for it.' In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear...