Evans v. State , 33 Ark. App. 184 ( 1991 )

James R. Cooper, Judge,

dissenting. I dissent from the majority’s holding that the entry of the appellant’s residence was unlawful. An entry is lawful where there are both exigent circumstances and probable cause. Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977). There is no doubt that the reported armed hostage situation in the case at bar provided the requisite exigent circumstances to support the entry. The only question remaining to me is whether the search was based on probable case.

Relying on Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988), the majority concludes that probable cause to search the appellant’s residence was not present. I disagree. In Mitchell, the police received an anonymous phone call informing them that there was a person who had been dead for some time in a house. The case at bar is clearly distinguishable: Here, the police were responding to a report from an identified caller who informed them that her daughter was being held at gunpoint. The element of immediacy which, as the Mitchell Court noted, is absent where there is no reason to believe that the victim might still be alive, was present in the case at bar. Moreover, the caller in the present case identified herself and her relation to the victim. Although the majority places this caller in the same category as an anonymous tipster, I submit that the willingness of a person to identify herself is a significant factor in determining trustworthiness; likewise, the fact that the caller in the case at bar telephoned the police reflects on her confidence in the information relayed to her by her son. Finally, I submit that the officer’s uncertainty concerning the address of the residence to be searched is not fatal to a finding of probable cause. The evidence in support of probable cause is not be analyzed on the basis of rigid rules, but should instead be viewed from the standpoint of experienced law enforcement officers. Mitchell, supra. The determination does not deal with hard certainties, but instead with probabilities in the context of particular factual contexts. Id. I submit that the search in the case at bar, when viewed in light of the above factors, was supported by probable cause. I respectfully dissent.