Moore v. State

• Court: Arkansas Supreme Court
• Writing for the Court: PURTLE; HICKMAN; STROUD; Stone
• Citation: Moore v. State, 594 S.W.2d 245, 268 Ark. 171 (Ark. 1980)
• Decision Date: 03 March 1980
• Docket Number: No. CR,CR
• Parties: Marvin Dewayne MOORE, Appellant, v. STATE of Arkansas, Appellee. 79-224.

Page 245

594 S.W.2d 245

268 Ark. 171

Marvin Dewayne MOORE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 79-224.

Supreme Court of Arkansas.

March 3, 1980.

Harold L. Hall, Stephen Safly, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Catherine Anderson, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

We exercised our discretion to grant the Petition for Review of the opinion of the Court of Appeals pursuant to Rule 29.6(b) and (c) of the Rules of the Supreme Court.

During appellant's trial for possession of controlled substance with the intent to deliver, the trial court overruled his motion to suppress evidence as having been obtained by an illegal search and seizure. The only point raised on appeal is that the trial court erred in denying the motion to suppress. We are of the opinion the motion should have been granted.

Bruce Burkhalter had been arrested for possession of a controlled substance and in an effort to gain favorable treatment he agreed to cooperate with the local police and Special Agent James R. Adkins of the DEA in setting appellant up for a charge of possession or delivery. In keeping with the plan, Burkhalter informed Adkins and others on January 31, 1978, that appellant would arrive in Little Rock from Texas on February 1, 1978, between the hours of 6:00 and 10:00 p. m., with 10 ounces of PCP for delivery to a man named Arthur Batch. The officers learned from Texas officials appellant would be driving a Toyota station wagon with Texas license number NVF 868. The identification of the vehicle was known by Adkins and others no later than 6:00 p. m. on February 1, 1978. A surveillance was placed on Batch at 6:00 p. m. and the arrest of appellant occurred about 8:45 p. m. When appellant and Batch made contact at a local motel the officers closed in and arrested appellant. He was immediately taken from the Toyota station wagon bearing Texas license number NVF 868 and handcuffed. His wife and child were taken from his vehicle and placed in another police vehicle. The Toyota was secured at that time.

A deputy prosecuting attorney and Officer Adkins were in their command post in the First National Bank Building. It was a cold night with temperatures below freezing and the streets were very slick. After the Toyota was secured the officers at the scene requested instructions from Adkins and the deputy prosecutor. They were instructed to search the vehicle without a warrant. At the hearing on the motion to suppress Adkins stated:

Well, they secured the vehicle. I asked them to verify that it was Moore driving and when they did, I conferred with the assistant prosecuting attorney, Robert Crank, and we gave them the go ahead to search the vehicle.

Acting upon the advice of Officer Adkins and the deputy prosecuting attorney, the officers searched the appellant's vehicle. After about 20 minutes they located the appellant's shaving kit which contained the contraband.

At the conclusion of the hearing on the motion to suppress the court found that probable cause existed and further stated:

Okay. It's the Court's view that the probable cause existed to search the vehicle and this probable cause was fully established only very shortly before the vehicle was searched and that is, they established the gray station wagon with Texas License Plate NVF 868; that exigent circumstances existed in this case in that it was below freezing temperature on the night in question; the roads were slick, and Mr. Crank is not a magistrate, he would have had to, at that time of night, traveled some distance from his location which was apparently the, one of the downtown buildings. The two year old child and the wife were to be considered under the circumstances in this case; and I feel that exigent circumstances existed and the search was valid. Anything else?

We are involved in this case with the Fourth Amendment to the Constitution of the United States which 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.

We also consider the Arkansas constitutional provisions relating to searches and seizures which are set out in art. 2 § 15 as follows:

The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.

We are not unmindful of the "automobile exception" which has developed over the past several years. However, we do not view the present case an "automobile exception" case. We think the present facts fit into the "suitcase doctrine" as set out in Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977); affirmed, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).

The primary holding in Sanders was that in the absence of exigent circumstances police are required to obtain a warrant before searching luggage taken from an automobile properly stopped and searched for contraband. In the present case there was probable cause and the automobile was properly stopped. Officer Martin performed the warrantless search only after being directed to do so by Special Agent Adkins and the deputy prosecuting attorney. The trial court was correct in holding there was probable cause. However, the court further held that exigent circumstances existed for the reason the streets were slick and the temperature was below freezing. Circumstances excusing a search without a warrant must be exigent. These circumstances must be "jealously and carefully" drawn. Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). These exceptions are cases involving danger to the officers or risk of loss or destruction of evidence. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). The United States Supreme Court has held that in the limited situations where a warrantless search may be conducted, the burden of proof is upon those seeking to justify the exception to show there was a need for it. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); and Chimel v. Calif., 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The reason for sometime allowing a warrantless search of an automobile is based upon the inherent mobility of an automobile which often makes it impracticable to obtain a warrant before the search. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The automobile here was secured and the shaving kit was in the exclusive control of the police.

In the present case the officers knew at least 24 hours in advance which vehicle the appellant would be driving. It was known with certainty which vehicle he was driving at least two hours prior to the time he was apprehended. During this time the appellant, Batch, and several teams of officers had been able to drive around the streets of Little Rock without any apparent mishaps. There was no valid reason why a warrant could not have been obtained during this time even if it did require someone to go get a search warrant during bad weather. So far as we are concerned, the Fourth Amendment is not suspended during inclement weather.

We think a person has a reasonable expectation, relying on the Fourth Amendment to the Constitution of the United States and art. 2 § 15 of the Constitution of Arkansas, of privacy in the matter of his personal luggage, including a shaving kit. There could hardly be anything which would be considered more private than a shaving kit which ordinarily includes one's toothbrush, toothpaste, shaving equipment, medication and other highly personal items. We hold that the warrantless search under the circumstances as related above was improper and the motion to suppress should have been granted. The case is reversed and remanded to the Court of Appeals with directions to remand it to the trial court with directions to grant the motion to suppress the evidence obtained without a warrant.

Reversed and remanded.

GEORGE ROSE SMITH, HICKMAN and STROUD, JJ., dissent.

HICKMAN, Justice, dissenting.

I am sympathetic to the statements of Justice Stroud. Since I have been a member of this Court, I have expressed similar sentiments regarding the law of search and seizure as it has been developed by the United States Supreme Court and other courts. See, Moore v. State, 261 Ark. 274, 278, 551 S.W.2d 185, 187 (1977) (supplemental opinion on rehearing) (Hickman, J., dissenting). That law has become a legal maze difficult to understand and impossible to administer. We have allowed the police to enter a man's house and arrest him without a warrant, but having done that, not allowed them to search the house. Moore, supra. The police may not search a suspect's suitcase when found in a taxicab, Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977), but they may search a defendant's purse when both have been taken to the police station. Sumlin v. State, 266 Ark. ---, 587 S.W.2d 571 (1979). A car stopped on the highway has been held the proper subject of a warrantless search sometime after the driver's arrest, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), while a car found in the defendant's driveway has been held not to be. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). To me, while these cases can be subtly distinguished, they cannot be persuasively reconciled.

The Constitution of the United States in its pure form, unadulterated by court decisions, is not difficult to understand nor to interpret. Amendment 4 reads:

(Unreasonable searches...