Daigger v. State , 268 Ark. 249 ( 1980 )

Darrell Hickman, Justice.

Daniel Albert Daigger, Donna Sue Daigger, and David Burl Taylor were convicted in Pulaski County Circuit Court of delivering LSD. Daniel Albert Daigger received a ten-year sentence. Donna Sue Daigger and Taylor received ten-year sentences with five years suspended. Their appeal raises three issues. First, they argue the trial court should have granted them a continuance so they could find and call as a witness, Jimmy Cahill, a police informant. Second, appellants argue the police illegally searched both the Daigger vehicle and Taylor. Third, Taylor alleges there was not enough evidence to convict him.

On appeal, the facts are not seriously disputed. Cahill introduced police undercover agents to Taylor at a bowling alley. The officers tried to buy some LSD from Taylor, but they could not agree on a price. Taylor took them to the Daiggers. A sale was made. Each of the Daiggers received $20.00. In response to a radio message from the officers making the purchase, another officer in the area arrested and searched Taylor shortly after the Daiggers left. In the meantime, a call was made to other policemen to stop the Daiggers’ vehicle and arrest the Daiggers. They were arrested and their vehicle was searched. A search of Mrs. Daigger’s purse, which was found between the front seats of the vehicle, uncovered LSD.

On the day the trial began, the appellants made an oral motion for a continuance to allow the State to furnish them Cahill’s address. The trial judge denied the motion. We affirm his decision. A continuance need only be granted upon a showing of good cause. Rules of Crim. Proc., Rule 27.3. A denial of a continuance will not be reversed absent a clear abuse of discretion. Russell & Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). We find none here. The appellants knew Cahill’s name and had ample opportunity, either through their own investigation or a specific discovery request, to find him before the trial began.

Neither do we believe the trial judge erred in admitting evidence, specifically the contents of Donna Sue Daigger’s purse, found in the search of her vehicle. This kind of search is authorized by Rules of Crim. Proc., Rule 12.4:

(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.

(b) The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.

The appellants, citing Sanders v. State, 262 Ark. 595, 559 S.W. 2d 704 (1977), aff'd 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), argue the search of the purse violated the Fourth Amendment’s prohibition of unreasonable searches and seizures. In Sanders we held a suitcase, which was seized from the locked trunk of a taxicab could not be searched. Sanders is not directly on point. The search here was of a purse found between the two front seats inside the vehicle. We compare this search favorably with a search which we upheld in the case of Sumlin v. State, 266 Ark. 709, 587 S.W. 2d 571 (1979). More importantly, we believe this particular search, conducted immediately after the Daiggers had made an illegal drug sale to the officers, and made contemporaneously with their arrest, was not unreasonable.

We do not decide the propriety of the search of Taylor. The conduct ascribed to him simply cannot, under our cases, be considered delivery of LSD. We held in Bowles v. State, 265 Ark. 457, 579 S.W.2d 596 (1979), that a man who simply introduced the buyer to the seller was not guilty of delivery. The middle man must take a more active part to be a principal or even an accomplice. For example, in Curry v. State, 258 Ark. 528, 527 S.W.2d 902 (1975), the conviction of such an individual was upheld. There Curry took the money and returned with the drugs. Here we affirm the Daiggers’ conviction but reverse Taylor’s and dismiss the charges against him.

Affirmed in part; reversed in part.

Purtle, J., concurs. Fogleman, C.J., and Mays, J., dissent.