Tillman v. State

• Decision Date: 22 December 1980
• Docket Number: No. CR,CR
• Citation: 271 Ark. 552,609 S.W.2d 340
• Parties: Charles TILLMAN, Appellant, v. STATE of Arkansas, Appellee. 80-164.
• Court: Arkansas Supreme Court

Page 340

609 S.W.2d 340

271 Ark. 552

Charles TILLMAN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-164.

Supreme Court of Arkansas.

Dec. 22, 1980.

E. Alvin Schay, State Appellate Defender by Linda Faulkner Boone, Deputy Appellate Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen. by James F. Dowden, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Chief Justice.

Charles Tillman was found guilty of theft by feloniously receiving and retaining a television set valued in excess of $100, knowing or having good reason to believe it was stolen. He was sentenced to five years imprisonment after a jury trial on January 25, 1979. On appeal, Tillman contends that the trial court erred in denying his motion to quash a search and to suppress as evidence the television, two screwdrivers and a knife seized as a result of that search. He also contends that the evidence was not sufficient to support his conviction of the felony of theft by receiving because there was no showing that the value of the television was in excess of $100. We do not agree with either contention, so we affirm the judgment.

On November 23, 1978, at about 7:50 p. m. Marshall Clarey, who resided in Apartment 5, at 969 Holly Street in Fayetteville, noticed an older model gold Cadillac automobile parked in the parking lot at the apartment complex. He observed a black male wearing a coat and a knit hat leaning against the car. A few minutes later, after the car had left, Clarey noticed that the door to a neighbor's apartment was open. Knowing the neighbor was out of town, Clarey entered the apartment and discovered that the neighbor's television set was missing and called the police. While waiting for the police to arrive, Clarey saw the same automobile pass the apartment twice and noticed that it was occupied by two people.

Officer George Coffman, a sergeant in the Criminal Investigation Division of the Fayetteville Police Department was advised of the burglary of the apartment by a radio message about 8:15 p. m. He was told that a gold Cadillac in which there were one or two men, one of whom was black, was seen leaving the apartment complex where the burglary occurred. He said he received a message 10 or 15 minutes later that a television set had been taken. Coffman said that he was aware that, about three days earlier, a gold Cadillac had been seen by the victim of a burglary about three hours before his apartment had been burglarized, that he knew that Tillman drove a gold Cadillac, that he had "worked" several burglary cases in which Tillman was convicted and that 23 apartment burglaries had been cleared when Tillman had been arrested. He directed Paul Wood and Mark Hanna, also of the Fayetteville Police Department, to go to the area in which Tillman lived. Coffman stationed himself about a half block from the residence at which Tillman was living.

Paul Wood testified that he saw and stopped appellant in the gold Cadillac in a public "alleyway." According to both Tillman and Officer Coffman, the alleyway was Meadow Street which ran behind the Ozark Theatre Building. Wood testified that he had been told by Coffman that a car of that description with a black person driving it, had been seen leaving the scene of a burglary. Wood asked the driver for his driver's license for identification. Tillman gave the officer his driver's license and the officer took it, went back to his police car and advised Coffman by radio that he had stopped the car. Wood said that he then awaited Coffman's arrival. Coffman testified that he arrived at the vehicle where Tillman was within three minutes after he received Wood's message, which was about 8:35 p. m., only about 20 or 25 minutes after he had received the first report of the burglary. He said that Tillman knew him and spoke to him. At that time, Officers Mark Hanna and Mike Carl had also arrived on the scene. Coffman said that the Tillman car was empty and that Tillman was in Officer Wood's car. Coffman testified that he told Tillman that a car matching the description of Tillman's car had been seen at a burglary a short time earlier and that the officers believed that they had reasonable grounds to search his car for a stolen television. According to Coffman, Tillman asked if he had a search warrant, and when he told Tillman that he did not, Tillman said he could not search the car. Coffman said he again advised Tillman that his understanding of the law was that the officers did have probable cause to search the car, asked Tillman for the car keys, and, when Tillman refused to give them to him, warned Tillman that if the officers could not have the keys, the car would be forcibly opened. Coffman said that Tillman became unruly and that the officers found it necessary to handcuff him for his protection and theirs. Coffman then removed the keys to the automobile from Tillman's pocket, opened the trunk and found a Sears color television, some hubcaps, two screwdrivers, a knife and a tape recorder.

Both parties say that Tillman had not been arrested at the time of the search and it is admitted that no warrant authorizing the search had been issued. The trial judge denied the motion to suppress the evidence, holding that probable cause for the search existed, that exigent circumstances existed, that the requirements of Rule 14.1, (Arkansas Rules of Criminal Procedure, Ark.Stat.Ann. vol. 4A (Repl.1977)) had been met and that the search was reasonable.

There were minor conflicts between the testimony of the officers and that of Tillman at the suppression hearing. The only conflict that might be considered significant is that Tillman testified that he never became unruly or belligerent, but that when he declined to open the trunk of his car the second time, he was grabbed by three or four policemen and handcuffed, after which the keys were taken from his pocket. Tillman now contends that he was improperly stopped and that, in any event, the officers had no right to seize and to search his person for anything other than weapons.

We simply do not agree with Tillman's contention that the officers did not have reasonable cause to believe that his moving, or readily movable, vehicle contained things subject to seizure. He says that the evidence fails to show that Officer Wood shared the information that Officer Coffman had and that he was stopped only on the basis of Wood's information that a gold colored Cadillac driven by a black male had been seen at the scene of a burglary. The test for probable cause for the stopping and the searching of this automobile rests upon the collective information of the police officers, however, not upon the information of the officer stopping the vehicle. Perez v. State, 260 Ark. 438, 541 S.W.2d 915. See also, Jones v. State, 246 Ark. 1057, 441 S.W.2d 458. Viewed in the light of the collective information of the police, not only was there reasonable cause for the search, pursuant to Rule 14.1, but the search was not unreasonable under Fourth Amendment standards, when we view the evidence in the light most favorable to the state, as we must. See Horton v. State, 262 Ark. 211, 555 S.W.2d 226.

The right of police officers to stop a vehicle on the public highway for the purpose of searching it exists when there is probable cause for that action, i. e., when the facts within the knowledge of the officers, or of which they have had reasonably trustworthy information, when they intercept the vehicle, amounts to more than a mere suspicion that it contains something subject to seizure. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Cox v. State, 254 Ark. 1, 491 S.W.2d 802; Tygart v. State, 248 Ark. 125, 451 S.W.2d 225, cert. den. 400 U.S. 807, 91 S.Ct. 50, 27 L.Ed.2d 36 (1970). See also, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Perez v. State, supra; Anderson v. State, 256 Ark. 912, 511 S.W.2d 151.

The officers clearly had the right to stop the vehicle. No search was attempted until Coffman arrived. When he did, he recognized Tillman. The parties agree that there was no arrest until after the search and the earlier existence of probable cause for an arrest is not material.

The right to search and the validity of the seizure were not dependent upon the right to arrest; they were dependent only upon the reasonable cause the officers had for believing that the contents of the automobile were subject to seizure. Carroll v. United States, 267 U.S. 132, 46 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, supra; Cox v. State, supra; Moore v. State, 244 Ark. 1197, 429 S.W.2d 122. Since the search was not incident to an arrest and not based upon a warrant, the reasonableness of the search turns upon its propriety as the search of an automobile.

The so-called "automobile exception to the requirement of a warrant authorizing a search was first stated in Carroll v. United States, supra. It was based upon the premise that the Fourth Amendment to the United States Constitution does not denounce all searches and seizures, but only those which are unreasonable. See Milburn v. State, 260 Ark. 553, 542 S.W.2d 490; Freeman v. State, 258 Ark. 617, 527 S.W.2d 909, 85 A.L.R.3d 1185. In Carroll, it was announced that the true rule is that a warrantless search and seizure are valid if made upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which is subject to seizure and destruction. It was recognized that there had long been a necessary difference between a search of a store, dwelling house or other structure and a movable vehicle, for contraband goods where it is not practicable to secure a warrant, because the vehicle can quickly be moved out of the locality or jurisdiction in which a warrant can be issued. See also, Chambers v. Maroney, supra. It is now...