Perez v. State

• Decision Date: 22 February 1971
• Docket Number: No. 5551,5551
• Citation: 249 Ark. 1111,463 S.W.2d 394
• Parties: Juan Ernest PEREZ, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 394

463 S.W.2d 394

249 Ark. 1111

Juan Ernest PEREZ, Appellant, v. STATE of Arkansas, Appellee.

No. 5551.

Supreme Court of Arkansas.

Feb. 22, 1971.

Sam L. Anderson, Hot Springs, for appellant.

Joe Purcell, Atty. Gen., Mike Wilson, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

The primary question on this appeal involves the validity of a search which resulted in the seizure of certain evidence in the trial of appellant on the charge of unlawful possession of cannabis in violation of Ark.Stat.Ann. §§ 82--1002 and 82--1020 (Supp.1969). The search was based on a search warrant issued by the circuit judge on December 16, 1969. The warrant was supported by an affidavit made by Sergeant Charles E. Evans of the Hot Springs Police Department. Appellant contends that the description of the place and person to be searched was unconstitutionally vague and that the warrant was invalid as a blanket search warrant. Under authority of the search warrant Evans and other officers accompanying him searched certain automobiles and an apartment occupied by appellant. Incriminating evidence was found in the apartment and in the automobiles. We find that the search warrant was invalid as to the search of the apartment but valid as to the search of the automobiles.

We have recently had occasion to consider the particularity with which the place to be searched must be described in order to meet constitutional standards. See Easley v. State (November 9, 1970), Ark., 459 S.W.2d 410. There we said that common sense dictates that the constitutional requirement is designed to aid the officers in locating the right property as well as to protect innocent property owners from unreasonable searches and seizures and to prevent officers from searching the wrong property. We found valid a search warrant describing the property as the house occupied by Bud Easley in or near Hiwassee. The house searched was located on a farm near the community of Hiwassee. Since the description was sufficient for any person familiar with the locality to identify the premises described under the circumstances, we held the search warrant valid.

Quite a different factual situation exists in the case now before us. The officer's affidavit recited that he had been told by a confidential and reliable informer 'that Jack Eaton has in his possession the following illegal substances in his possession; to-wit; marihuana, amphetamines, pills, cocaine, dextroamphetamine, methamphetamines, concealed in his apartment located at the corner of Curl Street and Washington Street in Hot Springs, Arkansas, and in two automobiles; a black Ford Thunderbird bearing 1969 Kentucky License B67--413, and a red Volkswagon bearing 1969 Kentucky License M6--801.'

The warrant recited that Evans had made affidavit 'that he had reason to believe that on the person of Jack Eaton and on the premises known as Curl Street Apartments at Curl and Washington Streets and in a black Ford Thunderbird, Kentucky License Number B67--413, and a red Volkswagon, Kentucky License Number M6--801, at said address in the City of Hot Springs, County of Garland, State of Arkansas, there is now being concealed certain property, namely marihuana, amphetamines, pills, cocaine, dextroamphetamine, methamphetamines at a certain apartment located at the corner of Curl and Washington Streets in Hot Springs, Arkansas, and in two automobiles: a black Thunderbird (Ford) Kentucky License B67--413, and a red Volkswagon Kentucky Licence M6--801, which are illegal drugs. The same being in the possession of Jack Eaton, the occupant of said apartment and the possessor of both of said automobiles. Approx 3 lbs of marihuana and several bottles of said pills--valued at about $3,000.00 which drugs were cartoned when brought to this address.'

The circuit judge found that there was probable cause to believe that the property described was concealed on the premises and automobiles and that grounds for issuance of the search warrant existed. The search warrant commanded a search of the places and automobiles named forthwith.

There was no evidence that appellant had ever been known as Jack Eaton. The Curl Street Apartments consisted of seven apartments in the same one-floor structure and an additional apartment in an adjoining structure. The apartments in the same unit were numbered one through seven. Apartment 6 was rented to appellant under the name Jack Perez. No unit in these apartments had ever been rented to a person named Jack Eaton, and the manager of the apartments had never heard of anyone by that name.

There was testimony by the officers that, before obtaining the search warrant, they had watched appellant drive up to the apartments in the Thunderbird and go into the apartment they later searched. In spite of this, when the officers went to the premises around midnight to conduct the search, Lieutenant Norman Hall of the Hot Springs Police Department and Sergeant Doug Harp of the Arkansas State Police went to the manager's quarters (apartment 3), aroused the manager and her husband and inquired as to the whereabouts of Jack Eaton. When the manager denied knowledge of any such person, they told her that he owned the Thunderbird in the back drive. Her husband then told them that the owner occupied apartment 6, and she added that this man's name was Perez. Lieutenant Hall and Sergeant Harp did not go to any door except that of the manager's quarters before going to apartment number 6. The officers explained that they could not actually see the door of the apartment they had reason to know Perez had entered while they were observing him before obtaining the warrant, and did not go onto the premises to obtain the number of the apartment for fear of making their suspect award of their presence. The manager testified that apartment 6 was so located that an officer who knew its location would not have had to go to any other part of the building to reach it or to awaken anyone or to come to the office. Evans also testified that, when he and Fletcher went to the back of the building where they thought the apartment was, the others went to the front because they were not completely certain they would find the person they were looking for.

Five officers assisted in the search. They found both of the vehicles described in the search warrant in the driveway to the apartments. Sergeant Evans recognized Perez as being the person called Jack Eaton by his informer from the informer's description. Lieutenant Hall and Trooper Fletcher searched the black 1964 Thunderbird bearing the license number stated on the search warrant. They found one package of a substance that they believed to be marijuana, which Hall identified at the trial. Fletcher described it as green vegetable matter which was in a clear plastic bag in the trunk of the Thunderbird. Hall gave a sample to Sergeant Doug Harp to take to the State Police Laboratory. The keys to the Thunderbird had been obtained from Perez. Sergeant Evans, Sergeant Harp and Sergeant Brown searched the apartment. Fletcher placed Perez and a man by the name of Martin, who was present in the apartment, under arrest.

Both the state and federal constitutions prohibit the issuance of search warrants '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.' As earlier indicated we do not feel that search warrants and supporting affidavits should be subjected to a hypercritical view in determining whether or not they meet constitutional requirements. Yet the constitutional language specifically requires that the place to be searched be particularly described. It is not material here that the officers searched the 'right' apartment, since the question is whether the apartment could be identified with particularity from the language used in describing it.

To say that appellant was not prejudiced because the search did not extend beyond his apartment, would overlook the fundamental basis of the constitutional requirements. We would thereby return to the thesis that illegally seized evidence is admissible, existing prior to Clubb v. State, 230 Ark. 688, 326 S.W.2d 816, making admissibility dependent on success of the search and frustrating the primary purpose of the state and federal constitutional provisions. See State v. Ratushny, 82 N.J.Super. 499, 198 A.2d 131 (1964); United States v. Hinton, 219 F.2d 324 (7th Cir. 1955). It is too late to revert to pre-Clubb standards. The many subsequent developments reflected by many state and federal decisions so clearly bar this reversion that no citation, enumeration or discussion of them is appropriate.

The warrant for search of the apartment would undoubtedly have been valid if it had correctly named the person to be searched and the occupant of the apartment or otherwise contained a description from which he could be identified or if it had otherwise specifically designated the particular apartment to be searched. Manley v. Commonwealth, 211 Va. 146, 176 S.E.2d 309 (1970); United States v. Hinton, supra; Webb v. State, 173 Tenn. 518, 121 S.W.2d 550 (1938). Otherwise, the requisite particularity is wanting. See 4 Wharton's, Criminal Law and Procedure (Anderson) pages 177, 181, §§ 1553, 1556. A warrant with no more particular description than this one affords is void because it vests the officer with selective discretion in determining where he could search and thereby invade the property of strangers to the process. Fance v. State, 207 So.2d 331 (Fla.App. 1968); State ex rel. King v. District Court of Fourth Judicial Dist., 70 Mont. 191, 224 P. 862 (1924); Purkey v. Mabey, 33 Idaho 281, 193 P. 79 (1920); Brewer v. State, 95 Okl.Cr. 256, 244 P.2d 1154 (1952).

As pointed out by the state, the courts are generally agreed that a warrant for search of a subunit is not valid if it does not describe the subunit to be searched but...