Steel v. State, 5467

• Court: Arkansas Supreme Court
• Writing for the Court: FOGLEMAN
• Citation: Steel v. State, 450 S.W.2d 545, 248 Ark. 159 (Ark. 1970)
• Decision Date: 02 March 1970
• Docket Number: No. 5467,5467
• Parties: Ronald STEEL, Carson Steel, Jr., and Doris Steel, Appellants, v. STATE of Arkansas.

Page 545

450 S.W.2d 545

248 Ark. 159

Ronald STEEL, Carson Steel, Jr., and Doris Steel, Appellants, v. STATE of Arkansas.

No. 5467.

Supreme Court of Arkansas.

March 2, 1970.

John B. Hainen, DeQueen, for appellants.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellants were convicted on May 1, 1968, of robbery of the Bank of Lockesburg on September 27, 1967. The conviction was affirmed on appeal. See Steel v. State, 246 Ark. 75, 436 S.W.2d 800. Thereafter, we granted appellants permission to seek postconviction relief under Criminal Procedure Rule 1 with respect to the validity of searches made of a pickup truck and a Pontiac automobile. Ronald Steel and Carson Steel, Jr., were occupants of the pickup truck, and Doris Steel was the occupant of the automobile when they were arrested on the day of the robbery.

The circuit court denied relief after a hearing on August 12, 1969. It was conceded by the state that search warrants issued for a search of these vehicles after they had been brought from the places of arrest to the scene of the crime were invalid. The ruling of the circuit judge was that the searches were valid as reasonable searches incident to a lawful arrest. Appellants' argument that the searches were unreasonable under constitutional standards seems to be based upon these contentions: first, there was no probable cause for their arrests; second, the extent of the search at the time and place the male petitioners were taken into custody went beyond constitutionally permissible bounds; and, lastly, that the search of the vehicles at the bank was too remote in time and place from the arrests to be reasonable without authorization by valid warrants.

Taking these points in the order stated, we find no merit in the first. On this point, little, if anything, was revealed in the postconviction hearing that was not in evidence during the trial. ¹ The trial judge held that the arrest of the two male appellants was lawful and cited the opinion of this court on direct appeal. As to these appellants, the question was fully considered on the prior appeal and no new argument is advanced on this appeal. We reaffirm our former holding as to the legality of these arrests.

While the legality of the arrest of Doris Steel was not specifically treated in the opinion on the first appeal, the disposition we make of this appeal makes a review of the circumstances of this arrest unnecessary.

Directing attention to the search of the pickup truck at the scene of the arrest, we again find that it was a search incident to a lawful arrest and not constitutionally unreasonable. The sheriff who made the search had apprehended three men after a hot pursuit which led to an apparently obscure, little-used, dead-end road. The officer was alone with three men who, as we found in the original opinion, he had reason to believe had participated in the armed robbery of a bank. He was confronted with the problem of taking and holding them in custody and returning them to the scene of the crime and ultimately to the county jail. It was reasonable to believe that the participants in the bank robbery would have weapons and evidentiary material under their control. Even though he was armed with a rifle, a daring attempt to escape of at least one of the three persons he had apprehended was certainly a possibility a prudent officer would consider. Any diversionary action by one might well permit another to obtain weapons or even to try to escape in the truck. According to Bradshaw, one of the Steels was not very submissive to arrest. He said that after the sheriff had told the three men to lie on the ground, he had to tell this one two or three times to 'lay down' or he (the sheriff) would 'put him down.' The pickup truck with its contents presented a hazard to the officer and to his ability to maintain his detention of the arrested persons and to seize any evidence connecting them with the crime before it could be removed. If he succeeded in taking all his prisoners away from the scene, there remained the possibility that one would escape, return and remove the pickup truck and its contents. There also remained the possibility that a confederate of the persons arrested would manage to remove this truck or its contents after he left the scene and before he or a person delegated by him could return for the vehicle with or without a search warrant. The only assistance available to him was that of Bradshaw, which he promptly enlisted. It does not appear that Bradshaw had ever been a police officer. He simply happened to reside near the 'dead-end' of the flight of the Steels and their companion. While he proved to be entirely trustworthy, Bradshaw's ability to control the arrestees for any period of time was not to be taken for granted. Bradshaw testified that the sheriff warned him to be careful.

Hilton had also found it necessary to leave Doris Steel, who he had a right to believe was a confederate, in the custody or under the surveillance of an impressed citizen. He could not be sure of her whereabouts or activities. An immediate search of the pickup truck for weapons and evidentiary material was clearly indicated. ² It and its contents were certainly under the immediate control of those persons when arrested. A failure to search the vehicle at this time and place under the prevailing circumstances would have been foolhardy and a dereliction of duty on the part of the officer. The only articles taken from the vehicle at this time were two loaded pistols. Even though Ronald Steel testified that Sheriff Hilton went upon the bed of the truck and took clothing and 'guns' from a box and proceeded to search in the glove compartment and under the 'dash' and the 'back' seat in the cab, and Carson Steel, Jr., stated that the loaded pistols removed by the sheriff were not in plain view but concealed under articles of clothing in a box, we find that this search was not beyond the permissible scope of a search incident to a lawful arrest. The opinion in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), rehearing denied 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969), ³ appears to be the latest guideline provided by the United States Supreme Court in this field. According to the holding there, the search incident to a lawful arrest could not have gone beyond the area from which the arrested persons might have obtained weapons or other things which may have been used to effect an escape or which could have been used as evidence against them. Even when we give appellants' testimony its strongest probative force, this search was not unreasonable as incidental to a lawful arrest.

Neither was that search unreasonable as the search of an automobile under the special considerations giving rise to more lenient standards on account of vehicular mobility. Even though the United States Supreme Court in Chimel has restricted automobile searches to some extent, as will be presently pointed out, it has clearly recognized the validity of searches of automobiles without warrants when probable cause of exists and it is not practicable, because of mobility of the vehicle, to secure a search warrant. In Chimel, the court clearly states that its holding is consistent with those principles stated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

Yet, we are unable to agree with the circuit court that the search of the vehicles at the bank was within constitutionally permissible bounds as incident to the arrest or otherwise. The state conceded at the hearing on appellants' petition that the warrants for these searches were invalid. Here again, we must turn to the Chimel case for guidance. While a dwelling house search was involved there, the court quoted from and relied upon principles stated in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), where an automobile search was involved. There it had been said that justification for vehicular searches contemporaneous with arrests was absent where the search is remote in time and place from the arrest. We take this to be the standard to be applied to the searches of these vehicles at the scene of the crime.

When Doris Steel was taken to the bank at Lockesburg by Graves, a private citizen in whose custody the sheriff had left her, the vehicle in which she was found was left on the road where Sheriff Hilton first saw her. It was locked before they left it, and the keys retained by Mrs. Steel. This point was about three miles from Lockesburg. The record showed that Graves delivered Mrs. Steel to Sergeant Page of the Arkansas State Police. The point at which Ronald Steel and Carson Steel, Jr.,...