Brown v. State ( 1976 )

John A. Fogleman, Justice,

concurring. I cannot agree that the affidavit for the search warrant contained sufficient showing of probable cause. The statement that “Cecil Bettis,, Jr. was seen parked beside the Harper’s home just prior to the robbery, with another subject with him” was obviously necessary to a finding of probable cause. It is just as obviously hearsay. The deficiency is not in failure to support the credibility and reliability of an identified informant and his information or of a victim. The informant is totally unidentified. I take this to be a fatal defect.

I would still agree that there was no error in the trial court’s refusal to suppress the evidence seized as a result of the search. There was evidence sufficient to sustain the circuit judge’s holding that the search was valid as a “consent” search. There was no evidence of coercion or promises to obtain the consent of Bettis to the search. He had been given Miranda warnings. The only factors militating against the validity of the consent were the fact that Bettis was in custody in the city hall and the absence of any affirmative evidence that Bettis knew that he could withhold consent. There would simply be no basis for our overturning the finding of fact made by the circuit judge in this respect. See United States v. Watson, — U.S. —, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976).

Although the trial judge did not sustain the search as a valid automobile search, the undisputed evidence shows that it was, in my opinion. There was probable cause for the arrest of Bettis and Brown. The automobile driven by Bettis was stopped at a roadblock on Highway 4, late in the afternoon. The traffic was fairly heavy, as the arresting officer estimated that he stopped about 100 cars in a 30 minute period before the arrest and another 100 between that time and the time when other officers arrived. The officer manning the roadblock was alone when the arrest was made. He took a weapon out of the car and another from one of its occupants. All this officer could do was to see that the vehicle was not molested by anyone and that Bettis and Brown did not escape. One of the officers who came in response to the arresting officer’s report drove the vehicle back to Newport. Darkness was then approaching. One of the searching officers explained that a search there was not feasible under the existing conditions and that it would have been dangerous to have left the automobile on the highway.

One of the victims of the crime had been struck with a weapon that could have been brass knuckles. The pistol found in the automobile fit the description of a weapon given by one of the victims as having been used by the burglars. At the time of the automobile search, there is no doubt that the searching officer had, as he testified, knowledge of sufficient facts to cause him to believe that it contained stolen articles, weapons or other evidentiary material.

In this respect, I suppose that I am only agreeing with the majority’s unarticulated position, when it said that a search warrant would not have been necessary. I do want to make it clear, however, that I do not consider the search at the police station to have been a valid search incident to an arrest or as a “plain view” search. My position on this point is similar to that I took in concurring in Byars v. State, 259 Ark. 158, 533 S.W. 2d 175 (1976).