Smith v. State, CA
| Decision Date | 30 January 1980 |
| Docket Number | No. CA,CA |
| Parties | Carl Don SMITH, Appellant, v. STATE of Arkansas, Appellee. CR79-105. |
| Court | Arkansas Court of Appeals |
G. Wayne Mooney, Harrisburg, for appellant.
Steve Clark, Atty. Gen. by Ray Hartenstein, Asst. Atty. Gen., Little Rock, for appellee.
Carl Don Smith was tried and convicted of possession of merchandise stolen from the grocery store of Gerald Mason. The jury imposed a sentence of two years imprisonment.
For reversal, appellant urges that his motion to suppress certain evidence should have been upheld as having been seized by a private citizen acting as an agent of the police and conducting a search without a warrant.
Testimony at the hearing on the motion established that Gerald Mason discovered that his grocery store had been broken into when he arrived to open for business. White plastic trash bags were strewn around, and Mr. Mason found that shotgun shells, rifle cartridges, cigarette cartons, meats and other merchandise were missing. The sheriff's office investigated and the deputy gave the names of several possible suspects to Mason, including Carl Don Smith and Vernon Hightower. Mason was instructed to call the sheriff's office if he discovered any leads or heard anything. Mason and a cousin undertook their own investigation later that day and watched Smith's trailer from a distant point. As they watched, Smith and Hightower came out of the trailer carrying plastic trash bags and placed them in the back of an automobile parked in appellant's driveway. Mason and his companion confronted appellant and through an open door of the automobile could see some of the contents of the bags, which Mason recognized as his own goods. Mason held Smith at gun point and took him to the grocery store in the automobile, at which point Smith and the goods were delivered over to the sheriff.
On this proof, Smith contends that the search was instigated at the suggestion of the deputy sheriff and, therefore, the seizure of the articles was in violation of Fourth Amendment guarantees.
It is recognized that the search-and-seizure clauses of the federal and state constitutions are restraints upon the government and its agents and not upon private individuals. Walker v. State, 244 Ark. 1150, 429 S.W.2d 121 (1968); United States v. Harvey, 540 F.2d 1345 (8 Cir. 1976). The rule, however, differs where such searches and seizures are instigated or encouraged by the police and in such instances the restraints do apply, ...
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