Ward v. State
| Decision Date | 13 November 1967 |
| Docket Number | No. 5298,5298 |
| Citation | 243 Ark. 472,420 S.W.2d 540 |
| Parties | Donald Wayne WARD, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
James E. Shoffey and Jack Rose, Ft. Smith, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
Donald Wayne Ward was convicted in the Sebastian County Circuit Court on charges of burglary and grand larceny. He was sentenced to three years in the penitentiary on the burglary charge and to two years on the larceny charge, and has appealed to this court relying upon the following point for reversal:
'The Appellant contends that the keys taken from his person after his arrest were prejudicial and inadmissible, because the Appellant was actually arrested when he was originally detained, and that the arrest was without probable cause, and that the Trial Court erred in not so finding and in not suppressing this evidence.'
About 4:00 a.m. on September 27, 1966, appellant was a passenger in an automobile driven by a Mrs. Anderson in the City of Fort Smith when the automobile was stopped by two police officers for driving too fast on Towson Avenue. Mrs. Anderson was charged with driving without a driver's license and since the automobile bore an Oklahoma license, she was required to go to the police station and post bond. One of the officers drove Mrs. Anderson's automobile to the station while the other officer drove the patrol car, and Mrs. Anderson and appellant rode to the police station with a police captain who had been called to the scene. The Fort Smith Police Department had had a pickup order on the automobile and a warrant had been issued in connection with the purchase of the automobile in Arkansas with worthless checks by Mr. Anderson. The details of this transaction are not important here, but after arriving at the station, in order to prove ownership of the automobile, Mrs. Anderson permitted the police officers to search the automobile. The officers found a payment receipt and a title certificate in the automobile and in addition they found under the front seat of the automobile a motel pillowcase containing over Sixty Dollars in quarters and small change, and also found some men's leather gloves and ladies canvas gloves, a pray bar, a screw driver, some wire pliers and a jumper cable. Mrs. Anderson and appellant were advised that they were under arrest for investigation for burglary and grand larceny. Appellant was then searched and the contends of his pockets, including some keys, were removed and he was placed in a jail cell.
The officers then retraced with Mrs. Anderson, the route she followed into Fort Smith, and near the place where Mrs. Anderson said she had taken a nap while appellant went for cigarettes, the officers found a pool hall that had been burglarized. The door of the building had been pried open, keys had been taken from an open cash register and money taken from pool tables and a music machine. The owner of the pool hall later identified two of the keys taken from the appellant, as being two keys taken from his cash register. The identification was made by comparing the keys, and the serial number on the keys, taken from appellant, with a duplicate set retained in the possession of the owner's wife. These keys were offered in evidence at the trial and this appeal is based on their admission in evidence.
Prior to the trial of this case, appellant filed a motion to suppress evidence and alleged in his motion as follows:
A separate hearing was had on this motion, at which time the appellant, as well as the police officers, testified. The trial court overruled the motion to suppress and admitted the keys in evidence.
The evidence is clear in this case that appellant did not part with possession of the keys until after the officers had ample grounds to believe that a felony had been committed. Appellant denied that he parted with possession of any keys at all. He testified that he emptied his pockets at the officer's request, but insists that the officers only took some finger nail clippers and handed back his keys. The officers testified that after the appellant was charged with burglary and grand larceny, they searched him and removed the keys from his pockets. There is no discrepancy in the testimony that this incident occurred after the automobile had been lawfully searched and the money in the pillowcase and the other items were found and removed from the automobile.
Appellant contends, however, that he was actually arrested when the automobile was first stopped by the officers and the driver, Mrs. Anderson, was given a citation for driving without a driver's license, and he contends that he was still under this arrest when taken to the police station. It is appellant's contention that this arrest was without probable cause or legal right and that if any keys were taken from his possession without a search warrant, they were obtained through an unlawful search and seizure and were inadmissible in evidence against him. Appellant argues that such search and seizure violates his constitutional rights guaranteed to him under Amendment 4 of the Constitution of the United States, and under Article 2, Section 15 of the Constitution of the State of Arkansas, which is as follows:
'The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.'
The appellant very properly points out in his brief that 'the law in the field of arrests, searches and seizures has been a dynamic one in federal courts and other states in this connection,' and appellant cites several federal court decisions in support of this statement. Appellant also cites our own case of Clubb v. State, 230 Ark. 688, 326 S.W.2d 816, which involved evidence obtained in the search of a house trailer without a search warrant. Appellant urges that under the caveat announced in that case, we should adopt the federal rule that all evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in the trial of a criminal case in a state court. We have not deviated far from the caveat announced in the Clubb case in 1959, and we do not do so now. Since the 1961 decision of the United States Supreme Court in the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, we have recognized the rule that where an accused is unlawfully arrested without cause, and searched without a warrant as a result of such unlawful arrest, the search would also be unlawful and keys or anything else seized as a result of such search, could not be used in evidence against him at his trial on a criminal charge unless waived by the accused. See Cabbiness v. State, 241 Ark. 898, 410 S.W.2d 867. This is true not merely because of Amendment 4 and Section 15 of Article 2, supra, but because the use of such evidence so obtained, would force the accused to be a witness against himself as prohibited by Amendment 5 of the United States Constitution and in Section 8 of Article 2 of the Constitution of Arkansas.
We do, however, still measure the reasonableness of a search, and determine the lawfulness of any seizure made as a result of it, by the facts of the case before us. It might well be urged in this case that the 4th Amendment to the United States Constitution, as well as Article 2, Section 15 of the State Constitution, protects the security of keys in the owner's cash register where they belonged, as well as in the appellant's pocket where they were found, but that is not the question on this appeal.
We now come to the question of whether or not the search of the appellant was unreasonable and the seizure of the keys was unlawful in this case.
We are of the opinion that the police officers had a right to stop the automobile in which appellant was a passenger. The officers testified that the automobile was speeding when they first observed it and this is not denied. As to whether or not the officers had reasonable grounds for arresting the appellant when the automobile was first stopped, and whether or not the appellant was actually placed under arrest at that time, the evidence is in conflict and is not clear. If the police officers had a warrant...
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...no error in the introduction into evidence of this receipt since it was incidental to and a product of a lawful arrest. Ward v. State, 243 Ark. 472, 420 S.W.2d 540 (1967). There was competent evidence by witnesses that the appellant had on occasions used the name 'Joe Longshore' and the use......
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...determination of reasonableness from all the facts and circumstances surrounding the search which are before the court. Ward v. State, 243 Ark. 472, 420 S.W.2d 540; Jackson v. State, 241 Ark. 850, 410 S.W.2d 766. The court may properly conclude that a police officer who conveys information ......