State v. Osborn

• Decision Date: 30 May 1978
• Docket Number: No. CR77-229,No. 1,CR77-229,1
• Citation: 263 Ark. 554,566 S.W.2d 139
• Parties: STATE of Arkansas, Appellant, v. William OSBORN, Appellee
• Court: Arkansas Supreme Court

Page 139

566 S.W.2d 139

263 Ark. 554

STATE of Arkansas, Appellant, v. William OSBORN, Appellee.

No. CR77-229.

Supreme Court of Arkansas, Division No. 1.

May 30, 1978.

Bill Clinton, Atty. Gen. by Jesse L. Kearney, Asst. Atty. Gen., Little Rock, for appellant.

Bill E. Ross, Blytheville, for appellee.

FOGLEMAN, Justice.

Pursuant to Rules 16.2(d) and 36.10, Rules of Criminal Procedure (Ark.Stat.Ann., Vol. 4A (Repl. 1977)), the state appeals from the granting of appellee's motion to suppress evidence obtained by a warrantless search of the mobile home which was the dwelling of appellee William Osborn. The trial court held that the search was illegal and that the controlled substance (marijuana) seized as a result of the search should be suppressed, along with statements made by Osborn when confronted with the fruits of the search, as evidence obtained in violation of appellee's constitutional rights. We find no reversible error and affirm.

On July 27, 1977, at approximately 10:45 p. m., Mrs. Iva McKinestry notified the Osceola Police Department, by telephone, that there had been a burglary at the mobile home next door to the McKinestry residence. Officer Nunnery was dispatched to the scene where he found Mr. McKinestry standing beside the Osborn mobile home. Mr. McKinestry advised Nunnery that the burglar (who was known to McKinestry) had come out of the trailer with a sack in his hand, that McKinestry had apprehended the burglar in an attempt to hold him until the police arrived, and that the burglar had broken loose and gone back into the mobile home and then had come back out without the sack and fled the scene. McKinestry's statements to the officer corroborated the information given him when he was dispatched to the scene by radio. Nunnery had called by radio for assistance and Lt. Ramey had been called.

The state contends that the marijuana was lawfully seized as a result of an inadvertent discovery of it in plain view by Officer Nunnery from a position in which he was lawfully entitled to be, or in the course of a lawful activity. The state submits that the merits of this appeal will turn upon the question whether a law enforcement officer investigating a crime at a private residence without a warrant is authorized to enter that residence in order to investigate and secure the crime scene. The state relies solely on Ark.Stat.Ann. § 19-1705 (Repl.1968) as authority for such an entry by a police officer. That section makes it the duty of a police officer "to suppress all riots, disturbances and breaches of the peace, to pursue and arrest any person fleeing from justice . . ., to apprehend any and all persons in the act of committing any offense against the laws of the State . . ., and at all times to diligently and faithfully enforce such laws, ordinances and regulations for the preservation of good order and the public welfare." Under this statute, says the state, it was the duty of the officer (Nunnery) to immediately and without undue delay secure the crime scene, search for and apprehend any burglary suspects still on the scene, seek out and provide aid for any citizens within the mobile home who may have been assaulted or bound by the burglars and search for further evidence of the crime. We do not view the issue as being quite so narrow, but as we see it, the evidence does not support this view, unless the evidence, viewed in the light most favorable to the state, is given its strongest probative force. That is not the appropriate approach.

We have never stated our standard for appellate review of the trial court action granting or denying motions to suppress evidence obtained by means of a warrantless search. Although the substantial evidence rule has been followed by this court in nearly every instance of review of any fact finding by a circuit judge, even on questions pertaining to admissibility of evidence, there has been at least one outstanding exception since our decision in Harris v. State, 244 Ark. 314, 425 S.W.2d 293, cert. den. 393 U.S. 941, 89 S.Ct. 308, 21 L.Ed.2d 278. We then decided that we would make an independent determination of the voluntariness of a confession as a basis for its admission into evidence, giving respectful consideration to the findings of the trial judge on the critical issue. This review was crystallized into a standard articulated in Degler v. State, 257 Ark. 388, 517 S.W.2d 515 and followed thereafter. See, e. g., Smith v. State, 259 Ark. 849, 537 S.W.2d 158. We have also extended it to at least one other situation pertaining to admissibility of evidence. See Hammers v. State, 261 Ark. 585, 550 S.W.2d 432.

Pursuant to Degler, we make an independent determination based upon the totality of the circumstances, but will not set aside a trial judge's finding of voluntariness unless it is clearly against the preponderance of the evidence. In this approach, we have given considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts. Harris v. State, supra. We must defer to the superior position of the trial judge to pass upon the credibility of witnesses. Whitmore v. State, 263 Ark. ---, 565 S.W.2d 733 (1978).

The "clearly erroneous" rule (which is equated with the "clearly against the preponderance of the evidence" rule, see Degler ), governs in many of the federal circuit courts of appeal. See U. S. v. Marzano, 537 F.2d 257, 33 A.L.R.Fed. 307 (7 Cir., 1976), cert. den. 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749; U. S. v. Reynolds, 511 F.2d 603 (5 Cir., 1975); U. S. v. Lindsay, 165 U.S.App.D.C. 105, 506 F.2d 166 (1974); U. S. v. Chase, 503 F.2d 571 (9 Cir., 1974), cert. den. 420 U.S. 948, 95 S.Ct. 1332, 43 L.Ed.2d 427. There is also considerable state case law support for this type of review. See, e. g., State v. Smith, 379 A.2d 722 (Me., 1977); State v. Pires, 55 Wis.2d 597, 201 N.W.2d 153 (1972); People v. Terrell, 77 Mich.App. 676, 259 N.W.2d 187 (1977). See also, Brooks v. U. S., 367 A.2d 1297 (D.C.App.1976); People v. Slonski, 40 Ill.App.3d 319, 352 N.E.2d 292 (1976); People v. Zynda, 53 Ill.App.3d 794, 11 Ill.Dec. 471, 368 N.E.2d 1079 (1977); Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. den. Ala., 335 So.2d 688 (1976), cert. den. 429 U.S. 963, 97 S.Ct. 393, 50 L.Ed.2d 332.

Since we feel that it is the better approach, and since it involves the same type of questions (often mixed questions of law and fact) that arise with reference to suppression of confessions, and the same placing of the burden of proof, we will review this case, and all those arising hereafter relating to a motion to suppress evidence obtained by a warrantless search, in the same manner we do when voluntariness of a confession is the issue. This is similar to the approach taken in other jurisdictions. See, e. g., Bies v. State, 76 Wis.2d 457, 251 N.W.2d 461 (1977).

There was considerable conflict in the testimony as to what happened after the report of the burglary was received. Nunnery testified that he was the first officer on the scene. Mrs. McKinestry corroborated this testimony and said that it was ten or fifteen minutes before other officers came. Nunnery said that three other officers responded and that all arrived at the scene, separately, but within "seconds" of each other (later he named Officers Cartwright, Barron, Hill and Harris as the officers), and that he was with Mr. and Mrs. McKinestry when they arrived, but he did not recall having seen Mrs. McKinestry when he first arrived at the scene. According to Nunnery,...