Wickliffe v. State

• Decision Date: 22 September 1975
• Docket Number: No. CR--75--60,CR--75--60
• Citation: 258 Ark. 544,527 S.W.2d 640
• Parties: Gary Wayne WICKLIFFE and Jimmy Don Scott, Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 640

527 S.W.2d 640

258 Ark. 544

Gary Wayne WICKLIFFE and Jimmy Don Scott, Appellants, v. STATE of Arkansas, Appellee.

No. CR--75--60.

Supreme Court of Arkansas.

Sept. 22, 1975.

John M. Fincher, North Little Rock, for appellants.

Jim Guy Tucker, Atty. Gen., by Robert Newcomb, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

Appellants were convicted by a jury of grand larceny. Wickliffe's punishment was assessed at three years and Scott's at three years (with two suspended) in the State Department of Correction. Appellants first contend for reversal that the court erred in denying their motion to suppress certain evidence. The basis for the motion was that the state acquired possession of certain items, particularly a set of tree trimming shears, by an unreasonable search and seizure which is prohibited by the Federal Fourth Amendment and Art. 2, § 15 of the Arkansas Constitution (1874). Appellants argue there was neither probable cause for their arrest nor the seizure of their vehicle and that a warrantless search, approximately twelve hours after their arrest at a time when they were in custody, was in violation of their constitutional rights.

A witness for the state testified that about 9 p.m. he observed a pickup truck near his house passing back and forth on a road between some highline poles which were adjacent to the highway. The truck's motor 'was killed' and shortly thereafter the 'highline roared.' He then walked down to where the unattended truck was parked. He observed it closely and that copper wire was missing from the highline poles for approximately '3 pole lengths' or 'nearly a quarter' of a mile. The witness promptly reported the suspicious circumstances to the sheriff's office. A deputy sheriff testified that he received the information supplied by this witness and drove to the scene looking for a vehicle fitting the description. When he arrived, the two occupants, the appellants, drove away in a pickup truck. He stopped them after a short distance and took them into custody. He looked into the back of the pickup truck and saw a pair of tree trimmers in open view. He returned to where he first observed the vehicle and found two rolls of copper wire which he then placed in the back of the truck along with the trimmers. He had the truck towed into a nearby town and locked up in a fenced salvage yard. The next day, the appellants being in jail, the officer removed the trimmers and other articles from the open bed of the pickup truck without a search warrant.

All warrantless searches and seizures are not prohibited by our federal and state constitutions. Only those which are unreasonable. Alexander v. State, 255 Ark. 135, 499 S.W.2d 849 (1973). Also an automobile, given probable cause, is subject to a warrantless search and seizure because it is a mobile or fleeting object. Roach v. State, 255 Ark. 773, 503 S.W.2d 467 (1973); and Easley v. State, 255 Ark. 25, 498 S.W.2d 664 (1973); and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Certainly, in the case at bar, there existed probable cause for the officer to stop and take control of the pickup truck and arrest appellants in view of the recited activities of its occupants and the fact that it fit the description relayed to police officers by a witness at the scene of the alleged offense. Anderson v. State, 256 Ark. 912, 511 S.W.2d 151 (1974); Roach v. State, supra; Easley v. State, supra; and Cox v. State, 254 Ark. 1, 491 S.W.2d 802 (1973). The appellants, however, argue vigorously that a warrantless search of the pickup truck the following day or about twelve hours later at the enclosed junkyard where the officer had impounded the vehicle under lock and key was illegal.

In Cox and Easley we held that where the initial intrusion of a vehicle was justified a subsequent warrantless search of a vehicle, after being removed into town, comported with constitutional standards. In doing so, we reviewed pertinent federal decisions. In approving a subsequent warrantless search of impounded vehicles in Cox and Easley, we cited, inter alia, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). There the warrantless search of an automobile was made at the police station sometime after the car was apprehended on the highway. In Coolidge v. New Hampshire, 403 U.S. 443, 463, note 20, 91 S.Ct. 2022, 2036, 29 L.Ed.2d 564, (1971), the court said It is true that the actual search of the automobile in Chambers was made at the police station many hours after the car had been stopped on the highway, when the car was no longer movable, any 'exigent circumstances' had passed, and, for all the record shows, there was a magistrate easily available. * * * The rationale of Chambers is that given a justified initial intrusion, there is little difference...