State v. Hamzy

• Decision Date: 21 April 1986
• Docket Number: No. CR,CR
• Citation: 709 S.W.2d 397,288 Ark. 561
• Parties: STATE of Arkansas, Appellant, v. Norflet HAMZY, Ralph M. Kuykendall, and Dana Keith Kuykendall, Appellees. 85-219.
• Court: Arkansas Supreme Court

Page 397

709 S.W.2d 397

288 Ark. 561

STATE of Arkansas, Appellant, v. Norflet HAMZY, Ralph M. Kuykendall, and Dana Keith Kuykendall, Appellees.

No. CR 85-219.

Supreme Court of Arkansas.

April 21, 1986.

Rehearing Denied May 27, 1986.

DUDLEY, Justice.

Appellees, Norflet Hamzy, Ralph Kuykendall, and Dana Kuykendall stand charged with keeping a gambling house. The police obtained telephone company records, relating to appellees' telephone activities, by use of a prosecuting attorney's subpoena rather than by use of a search warrant. With the information so gained, the police secured search warrants for the homes of two of the appellees and there seized gambling paraphernalia. The appellees filed a motion to suppress the evidence. The trial court granted the motion. The State filed this interlocutory appeal under Ark.Sup.Ct.R. 29(1)(k) and A.R.Cr.P. Rule 36.10. We reverse.

A confidential informant reported to the Little Rock police that a wager could be placed by calling a certain telephone number. For three days the police monitored the informant's calls to the number and verified that bets could be made by calling the number. The police apparently did not know the names of all of the appellees and did not know the address of the person or persons who held the number. A deputy prosecutor issued a prosecutor's subpoena directing the telephone company to produce records and information concerning the number. The subpoena commanded that the information be produced for an investigation conducted by the Little Rock Police Department.

At trial, the appellees made a very narrow suppression argument. They only argued that the Fourth Amendment was violated by an unauthorized search. They contended that the prosecuting attorney's office abused its subpoena power by authorizing the police to seize evidence. The trial court was unquestionably correct in holding that the seizure was unlawful on that basis.

The police do not have the power to issue subpoenas. A prosecutor does have the power to issue subpoenas. Ark.Stat.Ann. § 43-801 (Repl.1977). The prosecutor's power to subpoena, however, must be used only for a prosecutor's investigation. Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ark.App.1980). Here, the prosecutor abused his power to subpoena when he commanded that records be produced for the police. Such a misuse of the subpoena power effectively gave the subpoena power to the police. Clearly, the information from the telephone company was unlawfully seized. That information, in turn, was used to obtain warrants for the search of two of appellees' homes where the gambling paraphernalia were seized. The appellees successfully argued below that the evidence should be suppressed because of the unlawful seizure from the telephone company.

Neither the Supreme Court of the United States nor this court has ever held that unlawfully seized evidence is inadmissible against all persons, or in all proceedings. See, e.g., Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978); United States v. Ceccolini, 435 U.S. 268, 275, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268 (1978); Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976). The reason is "each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected." Rakas v. Illinois, 439 U.S. 128, 137, 99 S.Ct. 421, 427, 58 L.Ed.2d 387 (1978).

The State argues that these appellees do not have standing to question the unlawful seizure from the telephone company, and therefore, the exclusionary rule should not be applied in this proceeding. The doctrine of standing to invoke the Fourth Amendment exclusionary rule has now evolved to focus on a defendant's substantive Fourth Amendment rights. Id., at 140, 99 S.Ct. at 428. Under this test a court should not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own constitutional rights, and his rights are violated only if the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2443, 65 L.Ed.2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 133-140, 143, 99 S.Ct. 421, 424-428, 430, 58 L.Ed.2d 387 (1978).

The unlawfully seized evidence should not be suppressed unless the appellees had a legitimate expectation of privacy in the evidence. The concept of a legitimate expectation of privacy is set out in Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978):

Obviously, however, a "legitimate" expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as "legitimate." His presence, in the words of Jones, [v. United States], 362 U.S. , at 267 , is "wrongful"; his expectation is not "one that society is prepared to recognize as 'reasonable.' " Katz v. United States, 389 U.S. , at 361 (Harlan, J., concurring). And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary-rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to...