Norris v. State

• Decision Date: 17 May 1976
• Docket Number: No. CR75--199,CR75--199
• Citation: 536 S.W.2d 298,259 Ark. 755
• Court: Arkansas Supreme Court
• Parties: Bobby J. NORRIS, Appellant, v. STATE of Arkansas, Appellee.

Page 298

536 S.W.2d 298

259 Ark. 755

Bobby J. NORRIS, Appellant, v. STATE of Arkansas, Appellee.

No. CR75--199.

Supreme Court of Arkansas.

May 17, 1976.

Robert L. Shaw, Mena, for appellant.

Jim Guy Tucker, Atty. Gen. by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.

JONES, Justice.

Bobby J. Norris was convicted at a jury trial in the Polk County Circuit Court for the crime of delivering a controlled substance, marijuana, and was sentenced to the Arkansas Department of Correction for a period of ten years and was fined $4,000.

On appeal to this court he has designated the following points on which he relies for reversal and we shall discuss the points in the order designated:

I

The court erred in allowing the consideration of evidence which was improperly obtained.

This assignment pertains to the introduction into evidence of two marked $20 bills and a marked $10 bill and requires some discussion of the background facts as gathered from the testimony.

One Michael Pharr, who had served a sentence under the Controlled Substances Act and who was a longtime acquaintance of appellant Norris, became an informer in connection with the drug traffic in Polk County. According to his testimony he had previously purchased controlled substances, including marijuana, from Norris and on January 3 Norris advised him he had one-half pound of marijuana he would sell for $75. He said Norris later advised that he only had about 15 ounces of marijuana which he would sell for $50. He said he advised state Trooper Combs of the offer and arrangements were made for him to make the purchase under surveillance of the police officers. He said Officer Combs and Sheriff Hadaway then furnished him with $50 in marked money with which to make the purchase and that the officers explained the procedure he was to follow in indicating to them when the purchase was completed. He said he then went to Norris's house with the marked money which consisted of two $20 and one $10 bill; that Norris came out in his yard and after talking a few minutes, they walked to Norris's pickup truck where he handed Norris the marked money and Norris handed him a Bugler tobacco can containing the marijuana which he obtained from his pickup truck. He said he knew the police officers were watching the transaction and after he made the purchase he crossed the street and shrugged his shoulders as a signal by prior arrangement indicating that he had made the purchase.

Mr. Pharr said he looked back as he walked down the street and saw Norris walking toward his doorstep as the officers approached him, but he did not see whether Norris entered his house or not. He said by prearrangement he took the marijuana to Ray's Market where he delivered it to Rodney Combs, one of the police officers who came to Ray's Market to pick him up. He said he received no money from the officers for his services but that he made the purchase at their request for 'personal reasons.'

State Trooper Rodney Combs testified that he participated in the arrest of Norris. He said the money furnished to Mr. Pharr with which to purchase the marijuana was two $20 bills and a $10 bill marked with the sheriff's initials in ultraviolet pencil marking not visible to the naked eye, but which would show up under ultraviolet light. He said that after arranging with Mr. Pharr to make the purchase, he and the sheriff stationed themselves at a point near the Norris residence and that he observed the entire transaction through binoculars. He said he saw Mr. Norris and Pharr walk from Norris's porch to Norris's pickup truck parked in the yard and saw Norris hand the tobacco can containing the marijuana to Pharr and saw Pharr hand the money to Norris. He said that after this transaction Mr. Pharr crossed the street and shrugged his shoulders as per prearranged signal and that Norris walked back upon his porch and stood there for a moment. He said other police units were stationed in the area so that the transaction could be observed from different directions, and that by prearranged radio signal they went to the Norris residence after the transaction was completed. He said that as they approached the Norris residence, Mr. Norris stepped off the north side of the porch into some shrubbery. He said Norris was not arrested at that point but was informed by the sheriff that he had a search warrant for the house. He said that while in Norris's bedroom they examined the money he had in his possession and they did not find the marked money. He said he then went back outside to the north side of the porch were he had seen Norris step off into the shrubbery and there he found the wadded up bills which proved to be the two $20 bills and one $10 bill originally furnished to Mr. Pharr.

Sheriff Hadaway corroborated the testimony of Trooper Combs except he said he did not have binoculars and could not determine exactly what objects were exchanged between Pharr and Norris. He said he saw Norris walk back up onto his porch after the transaction but was unable to determine from his own point of observation whether Norris went into the house. He said he then gave the radio signal to the other officers and that he went to the front door of Norris's house. He said Norris's mother answered the door and upon his inquiry for Norris, told him he was not there, indicating he was not inside the house. He said about that time Mr. Norris stepped out of some shrubbery up onto the porch behind him.

On voir dire examination the sheriff testified he had informed Norris he was under arrest for possession of controlled substances before he searched his person in his bedroom, and that he had formally arrested Norris before the marked money was subsequently found in the yard.

The sheriff had obtained a search warrant for the search of the appellant's house and apparently had obtained from inside the house other items the state proposed to offer in evidence. The record, as abstracted, is not perfectly clear on the point but apparently the items from inside the house were found during a separate search subsequent to finding the marked money in the shrubbery at the side of the porch. At the in-chambers hearing prior to trial on motion to suppress evidence obtained under the search warrant the record, as abstracted, appears as follows:

THE COURT: Gentlemen, since we are in chambers I am confident the defense is concerned that no evidence should be presented on this charge concerning the subsequent search of the defendant's premises and the substances found as a result of the search.

MR. BOYD TACKETT, SR.: Right.

THE COURT: Of course, that can't be used, gentlemen, and the state is admonished not to mention it. I wish you would go into the witness room and tell the state's witnesses not to mention the subsequent search. Appellant's argument in this connection is simply that the search of a premises for any purpose was not based upon a lawful search warrant, that warrant having been quashed by the Court. Therefore, it would follow that any arrest of the appellant in connection with things obtained as a result of the unlawful search warrant would be void and insufficient to make further search of the premises as being incidential to that arrest.

The appellant argues under his first point that the trial court erred in failing to grant the appellant's motion to suppress the three marked bills as exhibits in evidence because they too, were obtained under the invalid search warrant. We are of the opinion that the marked bills were not obtained under the search warrant. The search warrant, exhibit 'A' in the record, was for marijuana concealed in the house occupied by Norris and the return enumerated various items found in the house which were excluded from evidence. The three marked bills were found outside the house following Norris's lawful arrest, and were found where the officers saw Norris go after receiving the marked bills and as the officers approached him just prior to his arrest. It is true that under the testimony of the sheriff he advised Norris that he was under arrest for the possession of marijuana rather than for the sale of it for which he was subsequently charged and convicted. But under the evidence in this case, the sheriff had a right to arrest Norris for possession of the marijuana he saw him sell and deliver to Pharr. When the officers failed to find the marked money on Norris's person when they searched him incidental to his arrest, they would have been derelict in their duty had they not looked for the marked money at the only place they saw Norris go between the time they saw him receive the money and the time of his arrest. The Fourth Amendment to the Constitution only protects against unreasonable searches and seizures. Bedell v. State, 257 Ark. 895, 521 S.W.2d 200, and the appellant's first point actually turns on the reasonableness of the search here involved. See Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), as later limited to some extent in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We conclude, however, that the exigency of the circumstances added to the reasonableness of the search for the marked money under the totality of the evidence in the case at bar. The warrantless search of automobiles to prevent the loss or destruction of incriminating evidence as approved in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and many federal and state cases since then has been extended to other objects where probable cause exists and the opportunity to search is fleeting. Such search was held reasonable as applied to a suitcase in United States v. Mehciz, 437 F.2d 145 (9 Cir. 1971), and as applied to ladies handbags in United States v. Hand, 516 F.2d 472 ...