Schneider v. State, CR

• Citation: 269 Ark. 245,599 S.W.2d 730
• Decision Date: 16 June 1980
• Docket Number: No. CR,CR
• Parties: Dianna SCHNEIDER, Appellant, v. STATE of Arkansas, Appellee. 80-52.
• Court: Supreme Court of Arkansas

Page 730

599 S.W.2d 730

269 Ark. 245

Dianna SCHNEIDER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-52.

Supreme Court of Arkansas.

June 16, 1980.

Rehearing Denied July 7, 1980.

Wiggins, Christian & Garner, Fort Smith, for appellant.

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

FOGLEMAN, Chief Justice.

Appellant Dianna Schneider was sentenced to five years' imprisonment upon revocation of her probation on a sentence imposed on January 25, 1977, after she had pleaded nolo contendere on a charge of unlawful possession of controlled substances. On her appeal she asserts three errors, one of which questions the sufficiency of the evidence. Two of them question the propriety of the trial court's denial of her motions to suppress evidence. We find no merit in them and affirm.

The prosecuting attorney filed a petition to revoke Ms. Schneider's probation, alleging that she had violated the terms of her probation in that she had, on February 3, 1979, committed the offense of possession of marijuana with intent to deliver, that, during her probationary period, she had actively engaged in the selling of marijuana and other drugs, and that she had committed the offense of possession of a firearm by a felon. It was on this petition that the probation was revoked, after a hearing before the trial judge.

We will not consider her points for reversal in the order they were argued; instead, we will first consider her motion to suppress the evidence of a telephone conversation, allegedly with her.

Detective Glen Yates, of the Narcotics Division of the Fort Smith Police Department, and other police officers arrested William Rhodes and Phillip Bruce at about 4:15 p. m. on February 3, 1979, for sales of marijuana, and took them to the police department where they were interrogated. Apparently, Rhodes and Bruce implicated Ms. Schneider as the source of their supply. Bruce, upon the urging of Detective Yates, placed a telephone call, which was recorded on tape. This recording disclosed a conversation by Bruce with a person who answered to the name Dianna and whose voice was identified by Yates as that of appellant. It tended to incriminate her as a supplier of marijuana. The trial judge, after having denied a motion to suppress the evidence of this conversation, considered it, along with other evidence, in finding that Ms. Schneider had violated the terms of her probation.

It was asserted by appellant that the telephone conversation was intercepted without the consent of either of the parties to it, and, consequently, was inadmissible because of 18 U.S.C. § 2511(2)(c), which makes the interception of such a conversation lawful, if one of the parties has given his prior consent. The state contends that Bruce did consent, but appellant counters that the consent was not voluntarily given. The evidence on this point is somewhat conflicting. Yates testified that Bruce agreed to make the telephone call 10 to 15 minutes prior to its being made and that Bruce was told, before the call was placed, that the conversation would be recorded and probably used in court. He said that Bruce appeared normal, but a little frightened, due to the fact that he had been arrested. Yates stated that he noticed nothing unusual about Bruce's demeanor, and that Bruce showed no signs of having lost control of his "facilities" by reason of having taken marijuana or LSD. He said that Bruce exhibited none of the classical symptoms of being under the influence of LSD. He stated that Bruce had no objection to the recording of the conversation and that no promises were made to him that things would go lighter with him if he would cooperate. Yates said that Bruce was advised that everything he did would be reported to the prosecutor's office.

Bruce testified that he made the telephone call at the suggestion of Yates but consented to its being recorded only because Yates told him the recording would be made so the officers could hear it and it would never leave the room in which it was made. Bruce said that he did not think he would have made the call if he had not been promised it would not be used. He also said that he was promised that the officers would talk to the prosecuting attorney for him, and that Yates promised to try to get the prosecuting attorney to go easy on him. Bruce testified that, at the time, he was under the influence of LSD and marijuana and was laughing and shaking uncontrollably, but did not hallucinate. He did not remember whether he had any problem talking. He said that he was willing to get out of the jam any way he could.

The trial judge specifically found that Bruce had voluntarily consented to the recording of the telephone call. Assuming, without deciding, that Congress can adopt an exclusionary rule in this field governing the state courts, we are unable to say that the trial judge erred. It has been held that a defendant who contends that the caller's consent was obtained through a hope for leniency has the burden of establishing that consent was not voluntary by showing that the informer's will was overcome by threats or improper inducement amounting to coercion or duress, United States v. Hodge, 539 F.2d 898 (6 Cir.), cert. denied sub nom. Robertson v. United States, 429 U.S. 1091, 97 S.Ct. 1100, 51 L.Ed.2d 536 (1977). It has been said that, even though it is unlikely that one would permit the police to intercept a conversation unless he expected something from the police in return, the consent is not involuntary, so long as pressure is not initiated by the police for the purpose of overbearing the will of the party. United States v. Osser, 483 F.2d 727 (3 Cir.), cert. denied 414 U.S. 1028, 94 S.Ct. 457, 38 L.Ed.2d 321 (1973); United States v. Baynes, 400 F.Supp. 285, aff'd, 517 F.2d 1399 (3 Cir., 1975). It has also been held that, in order to show voluntary consent, it is not necessary to make the showing that would be required to show consent to a search; it is only necessary to show that the caller proceeded after knowing "what the law officers were about." United States v. Bonanno, 487 F.2d 654 (2 Cir., 1973).

The question resolves itself into one of credibility and resolution of conflicts. Since it does, we must defer to the superior position of the trial judge. State v. Osborn, 263 Ark. 554, 566 S.W.2d 139; Whitmore v. State, 263 Ark. 419, 565 S.W.2d 133; Horton v. State, 262 Ark. 211, 555 S.W.2d 226.

We now turn to the question of admissibility of certain firearms, some marijuana and money seized as a result of a search, pursuant to a warrant issued by a municipal judge upon the affidavit of Detective Yates. At the outset, we reject appellant's contention that the trial court erred in placing the burden of showing that the warrant was improperly issued upon her. Appellant relies upon Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646. In that case, we held that the state bore the burden of establishing that a search warrant was issued in compliance with the law by producing the required written evidence relied upon by the issuing magistrate as establishing probable cause. The decision in Lunsford was based upon our decision in Russ v. City of Camden, 256 Ark. 214, 506 S.W.2d 529. In Russ, we simply held that, in order that the accused might have the opportunity to assail the validity of a warrant upon which the state seeks to justify a search and the affidavit upon which the warrant was based, the state has the burden or responsibility of producing the warrant and affidavit or to follow approved procedure for establishing their contents. This is necessary because the issuance of the warrant is not an adversary proceeding and the accused may have never seen either the warrant or the affidavit, whose validity he may attack on a motion to suppress evidence seized. When the warrant and affidavit appear to be facially valid, there is a presumption that everything essential to the issuance of the warrant has been done. Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421. The burden of showing the invalidity of the warrant and its supporting documents was upon appellant. Prichard v. State, 258 Ark. 151, 523 S.W.2d 194.

Appellant states that the sufficiency of the affidavit is the only issue. She says that there were these deficiencies in the affidavit:

1. The statements by Rhodes and Bruce were hearsay because neither were under oath before the judicial officer who issued the warrant, but the affidavit contained nothing to show their reliability or the reliability of the information they gave.

2. There was nothing in the affidavit to identify the voice on the tape recording of the telephone conversation as that of appellant.

3. The source or reliability of Yates' statement that he had, during the course of his investigations, received information that appellant was then active in the drug traffic in Ft. Smith, and the statement itself was conclusory.

4. There was no statement of the underlying facts and circumstances from which the judicial officers...