Rodriquez v. State, CR77-50
| Decision Date | 16 January 1978 |
| Docket Number | No. CR77-50,CR77-50 |
| Citation | 262 Ark. 659,559 S.W.2d 925 |
| Parties | Hilario Mascil RODRIQUEZ, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Canales & Barrera, Alice, Tex., for appellant.
Bill Clinton, Atty. Gen. by Jackson M. Jones, Asst. Atty. Gen., Little Rock, for appellee.
The appellant was charged with possession of marihuana for the purpose of delivery. The State's proof showed he was arrested while driving through Arkansas with a U-Haul trailer containing a large quantity of marihuana. The jury returned a verdict of guilty, fixing the sentence at ten years. For reversal the appellant argues that his motion to suppress the evidence found in the trailer should have been granted and that the trial court erred in finding that appellant consented to a search of the trailer.
The arrest occurred in Clark county. On May 14, 1975, the Arkadelphia police received a computer printout from State Police Headquarters in Little Rock. The message stated that, according to information from "the border patrol," a convoy of three vehicles occupied by Mexican-Americans was traveling from Mexico across Arkansas. The first vehicle was said to be a decoy, the second to contain a large amount of marihuana, and the third to be an armed guard vehicle. The only available description was that the third vehicle had a four-wheel drive.
At 7:00 o'clock the next morning the police at Prescott and Arkadelphia received an oral radio message from the State Police at Hope. That message said that a convoy corresponding to the one described by the border patrol had passed Hope on Interstate 30. One of the vehicles had crossed the scales at the weigh station there, while the other two slowed down and waited for it. The message described the first vehicle as a two-ton silver truck pulling a U-Haul trailer, the second as a brown vehicle pulling a U-Haul trailer, and the third as a green two-ton truck with a canvas tarp over it.
Various police units converged upon three vehicles traveling on Interstate 30 near Arkadelphia. The first, a van pulling a U-Haul trailer, was about a mile ahead of the other two and, as it now appears, was not actually part of the convoy. The second was a brown car, pulling a U-Haul trailer and being driven by the appellant, who appeared to be a Mexican. The third, containing what appeared to be Mexicans, was a green two-ton truck with a canvas cover over it. None of the vehicles had a four-wheel drive or contained arms.
The officer who stopped the appellant, Rodriquez, patted him down for weapons, examined his Texas driver's license, and eventually opened the trunk of the car with a key provided by Rodriquez. Upon discovering in the trunk what appeared to be a large amount of marihuana the officer placed Rodriquez under arrest.
The officer testified that after telling Rodriquez the officers were looking for marihuana, he asked Rodriquez if he might search the vehicle. According to the officer, Rodriquez voluntarily produced the key. That testimony was disputed by Rodriquez, who denied having consented to the search. According to Rodriquez, he asked whether the officer had a search warrant. The officer patted his gun and said that was all the search warrant he needed.
Under our holding in White v. State, 261 Ark. 23, 545 S.W.2d 641 (1977), we cannot sustain the trial court's finding that Rodriquez voluntarily consented to the search. At the time he was apparently surrounded by armed police officers. We pointed out in White that the State has the burden of proving that consent was freely and voluntarily given. "This burden cannot be discharged by showing no more than acquiescence to a claim...
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