Rowland v. State, CR

• Decision Date: 13 February 1978
• Docket Number: No. 2,No. CR,CR,2
• Citation: 561 S.W.2d 304,262 Ark. 783
• Parties: Roger ROWLAND, Appellant, v. STATE of Arkansas, Appellee. 77 71
• Court: Arkansas Supreme Court

Page 304

561 S.W.2d 304

262 Ark. 783

Roger ROWLAND, Appellant, v. STATE of Arkansas, Appellee.

No. CR 77 71.

Supreme Court of Arkansas, Division No. 2.

Feb. 13, 1978.

Adams & Wilson by Douglas L. Wilson, Rogers, for appellant.

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

FOGLEMAN, Justice.

Roger Rowland was found guilty of possession of a controlled substance with intent to deliver. The judgment of conviction must be reversed for at least two reasons.

The first reason for reversal is error of the trial court in holding that physical evidence taken from appellant when he was searched at the time of his arrest was admissible in evidence. On the record before us, this ruling cannot be upheld because of the absence of any evidence establishing the reliability of an informer. At an omnibus hearing, the prosecution stated there was an informer, who would not be called as a witness at the trial and that the privilege of non-disclosure would be claimed.

At the suppression hearing, the state depended upon the testimony of Sheriff Ralph Baker of Madison County to establish probable cause for the warrantless search. Sheriff Baker testified that he received a telephone call at about 2:00 p. m. on January 9, 1976, from a confidential informant who advised him that a 1970 model compact car, dirty green in color and having a dent in the left front door would be coming from Fayetteville through Madison County and passing Huntsville without coming through the main part of town. The informant said that the vehicle would be occupied by Roger Rowland and two high school students and that Rowland would have "speed" or amphetamine pills in his possession. Baker said he advised the Chief of Police of Huntsville of the information he had received by radio and sought that officer's assistance. Baker said that he also conveyed the information to the State Police. He started toward Springdale on Highway 68, taking Deputy Sheriff Phillip Morgan with him. They met the vehicle between Huntsville and Hindsville. Baker advised the chief of police that he had seen the vehicle and asked him to prepare to stop it. When Baker returned to Huntsville, the chief of police had stopped the vehicle on a side street in Huntsville. Baker said that 10 to 20 minutes elapsed between the time he received the call from the informant until he was advised that the car had been stopped. When Baker arrived at the scene he found only two persons in the vehicle, one of whom was Rowland. A third person was outside the car with Officer Elmer Cook. Baker or Deputy Sheriff Phillip Morgan asked Rowland to get out of the car. Rowland was then searched by Morgan who found drugs consisting of two bags of amphetamine pills and one bag of marijuana in Rowland's boot. Rowland was arrested.

The informant was not present at any time during the pursuit, apprehension and search of Rowland. Baker was not certain as to the means by which his informer obtained his information, but, according to Baker, it was accurate even to the number of pills possessed by Rowland. When asked if his informant was a police officer, Baker reluctantly admitted that he was, but Baker was not required to answer appellant's attorney's inquiry whether that officer was an undercover agent, even though that attorney insisted that he was entitled to know where Baker got the information on which he relied for probable cause.

The circuit judge held that the search was on probable cause during exigent circumstances, that the search was substantially contemporaneous with the arrest and that it was immaterial which came first. The only flaw in this finding is that the reliability of the informer and the source of his information were not disclosed. Success of the search did not validate it, if it was unlawful in its inception. Walton v. State, 245 Ark. 84, 431 S.W.2d 462. The state bore the burden of proving that the search was legal and proper. Asher v. City of Little Rock, 248 Ark. 96, 449 S.W.2d 933. The validity of a warrantless search is first dependent upon existence of probable cause, unless the search and seizure is incident to a lawful arrest. Freeman v. State, 258 Ark. 617, 527 S.W.2d 909. Whenever a police officer has reasonable cause to believe that contraband is being unlawfully transported in a vehicle, that vehicle may be the object of a warrantless search, but the right to search and the validity of the search are dependent upon the reasonableness of the cause of the searching officer has for believing that the contents of the automobile offend against the law. Perez v. State, 260 Ark. 438, 541 S.W.2d 915. Reasonable cause exists when the facts and circumstances within the officer's knowledge, or of which he has trustworthy information are sufficient to warrant one of reasonable caution to believe that an offense is being committed. Perez v. State, supra. Probable cause is evaluated by the courts on collective information of the police, and not merely on the personal knowledge of the officer making the decision. Perez v. State, supra.

In cases involving issuance of search warrants, it has been settled that a valid warrant may issue upon hearsay information, so long as it is shown that there is a substantial basis for crediting the hearsay. Flaherty v. State, 255 Ark. 187, 500 S.W.2d 87, cert. den. 415 U.S. 995, 94 S.Ct. 1599, 39 L.Ed.2d 893. This requires more than the statement of a mere conclusion of the informant, however reliable he may be. Lunsford v. State, 262 Ark. 1 (1977), 552 S.W.2d 646. A reviewing court should require no less in evaluating probable cause for a warrantless search, for it must make a substantive determination of reasonableness from all the facts and circumstances surrounding the search which are before the court. Ward v. State, 243 Ark. 472, 420 S.W.2d 540; Jackson v. State, 241 Ark. 850, 410 S.W.2d 766. The court may properly conclude that a police officer who conveys information is reliable. Even though some credence and weight should be given to the expertise of an experienced law enforcement officer in making probable cause evaluations, it is still necessary that the reviewing court be given the benefit of the information and circumstances on which the officer determined probable cause for a search made by him. See Wright v. State, 258 Ark. 651, 528 S.W.2d 905. This does not necessarily require disclosure of the identity of the informant, but it does require the disclosure of enough information to show that the informant was worthy of belief and enough of the information he disclosed to establish probable cause for the search, either when considered alone or along with all other facts and circumstances known to the police. See Glover v. State, 248 Ark. 1260, 455 S.W.2d 670; Walton v. State, 245 Ark. 84, 431 S.W.2d 462; Cockrell v. State, 256 Ark. 19, 505 S.W.2d 204.

In a judicial determination of probable cause, the source of the information and the means of its acquisition must be shown, in order that the judicial officer making the determination can judge the reliability of that information and the propriety of an arrest or search based upon it. Since there was no such evidence before the court, the state failed to meet its burden to justify the warrantless arrest and search. See Rodriquez v. State, 262 Ark. 659 (1978), 559 S.W.2d 925.

The state relies upon affidavits by the prosecuting attorney and Sheriff Baker which were filed after the suppression hearing to enable the trial court to determine whether the identity of the informer should have been disclosed under Rule 509, Arkansas Uniform Rules of Evidence. But these ex parte affidavits were furnished to the circuit judge in camera and their content was disclosed to appellant and his counsel only by accident, after this appeal was taken. Appellant has had no opportunity to cross-examine the affiants about the content of these affidavits or to refute them by other evidence. The prosecuting attorney's affidavit is hearsay upon hearsay. It is couched in language that might indicate that the statements were within the personal knowledge of the affiant, but they obviously were not. It is not totally consistent with Baker's testimony as to the telephone conversation. In the affidavit, the prosecuting attorney identified the officer who called Baker as J. D. Snow and relates that Snow acquired his knowledge from one Jerry Watkins, that Watkins was a paid informer and that many arrests and convictions had been obtained in Washington County on information supplied by him. The reliability of the informer cannot be established by this kind of hearsay.

The fatal defect in the evidence before the trial court was the failure of the state to show the basis of the informer's knowledge and, in the case of the real...