Walton v. State
| Decision Date | 09 September 1968 |
| Docket Number | No. 5353,5353 |
| Citation | 431 S.W.2d 462,245 Ark. 84 |
| Parties | Leo WALTON and Milford Fuller, Appellants, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Donald J. Adams, Yellville, and Moore & Brockmann, Harrison, for appellants.
Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
The basic question raised by appellants is that of validity of a search and seizure. It was properly raised in the trial court by motions to suppress evidence and objections to testimony and evidence, all of which were denied and overruled. Although it appears that several charges were filed against appellants Walton and Fuller as a result of the investigation of which this search was a part, this appeal is taken from a judgment of conviction of appellants of the crime of possessing a Zenith color type television and a Zenith stereo type record player, alleged to have been stolen from one Chuck J. Carter, proprietor of Carter-Binley Appliance Company of Seymour, Missouri.
The investigation was commenced by Sheriff Mickey Owen of Greene County, Missouri, who came to Harrison in pursuit of a large quantity of men's clothing and television sets said to have been stolen from business establishments in this county. After he arrived in Harrison on the morning of September 7, 1967, he was accompanied to the office of the municipal judge by the prosecuting attorney of the 14th judicial district, the sheriff of Boone County, Sgt. Earl Rife of the Criminal Investigation Division of the Arkansas State Police, and the president of a clothing store in Springfield, Missouri, from which it was charged that a large quantity of merchandise had been stolen. A hearing was held to determine probable cause for the issuance of a search warrant. A draft of an affidavit for a search warrant, which Sheriff Owen was prepared to execute, was presented to the judge and was in the following form (omitting formal parts):
'Information has been presented to me, under oath, by George L. Hall, President of Williams Clothing Store, Springfield, Mo., that said store was burglarized on 9--4--67 and 400 mens suits, three top coats, ten sport coats, five pants, eight threepiece combination sport suits of the approximate cost to us to $20,000.00; and further information has been presented to me by a confidential informant whose information has proved reliable before, and whom I believe to be reliable, and I believe this information given by said information now is reliable and that I do in truth suspect that such property is concealed in the frame dwelling house, barns, tool sheds and other out buildings located on a forty acre tract of land owned by Ed Willis and Golden Rich Distributing Co., Inc., on the Cottonwood Road, Boone County, described as the SW NW 4--19--20, as recorded on deed appearing at book 96, page 446, said lands being used by Ed Willis and others at 5 miles North on Cottonwood Road in the State and County aforesaid, and pray a warrant from said Court to search said premises, dwelling house, barns, garages, outbuildings and automobiles situated on said lands and to seize any and all of the above property found thereon.'
Inquiry was conducted to determine probable cause for the issuance of the warrant, but the judge did not administer any oath to any witness. The hearing consisted of a reading of the affidavit by the judge, a statement by the president of the concern that a list attached to the affidavit was a description of the merchandise lost by a and affirmative responses of Sheriff Owen to inquiries by the judge whether he had on previous occasions relied on the unnamed informer and whether success had been realized as a result of this reliance. The judge also asked why the officers thought the property sought would be at the place to be searched by the time they got there and was told that the place was 'staked out.' Sheriff Owen then signed the affidavit, an oath was administered to him and the following warrant was issued (omitting formal parts):
About three hours later the officers returned to obtain a warrant for a search of other premises. Upon inquiry by the municipal judge, without administration of any oath, they reported that their initial search resulted in the discovery of some of the merchandise sought and Sheriff Owen stated that the informant mentioned in the affidavit he then proposed to sign was the same as the one from whom he obtained the information upon which the first search was based. Thereupon the affidavit was signed by Sheriff Owen and the search warrant issued. This affidavit was as follows:
'I, Mickey Owen, Sheriff of Greene County, Missouri, do solemnly swear that: on September 1, 1967, the Carter Hillen Appliance Co., Springfield, Missouri, was burglarized and 22 TV sets were stolen, as per the attached list setting forth the set and each serial number and description; that information has been presented to me by a confidential informant, which information I believe to be reliable; and that the information given to me in the past by said informant has been reliable; the information being that said TV sets were brought to Boone County, Arkansas, and that I do in truth suspect that such property is concealed in the business place of the Golden Rich Distributing Co. Inc., a corporation, on the Clarence Hudson property located on Highway 65N in Harrison, Arkansas occupied by Golden Rich Distributing Co. Inc. in the State and County aforesaid, and pray a warrant from said Court to search said property, including the business place, warehouses, storagerooms, garages, outhouses, automobiles, trucks and any other place of concealment located on said property, and to seize any of the said TV sets located therein.'
The search warrant read (omitting formal parts):
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Glover v. State, 5479
...and excluded the evidence obtained thereby. Both the appellant and the state rely on our decision in Walton and Fuller v. State, 245 Ark. 84, 431 S.W.2d 462 (1968), for their respective positions on this point. In Walton we '* * * While an affidavit for a search warrant may be based upon pe......
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Davis V. State
...not validate the search if it was unlawful in its inception. Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989); Walton v. State, 245 Ark. 84, 431 S.W.2d 462 (1968). Ivy testified that he "searched Mr. Davis because he kept giving indications he was possibly fixing to run." The search wa......
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Miller v. State
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Brown v. State
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