Morris v. State

George Rose Smith, Justice.

Charged with the unlawful possession of LSD, a hallucinogenic drug, the appellant was found guilty and sentenced to a $250 fine and to 12 months imprisonment. His principal contention for reversal is that the trial court erred in refusing to suppress evidence obtained by means of a search warrant assertedly issued without lawful authority.

That contention must be sustained. The search warrant in question, issued' by a municipal judge, directed officers to search the appellant’s apartment for LSD, marihuana, and other specified drugs. Under the authority of that warrant the police entered the apartment and seized certain drugs, which were received in evidence at the trial. In the recent case of Grimmett v. State, 251 Ark. 270-A, 476 S.W. 2d 217 (1972), which was decided after the present case was tried, we held on rehearing that at the time the search warrant in the Grimmett case was issued, there was neither common law nor statutory authority for the issuance of a search warrant for contraband drugs. The search warrant in that case, as in the case at bar, was issued before the effective date of Act 123 of 1971. Ark. Stat. Ann. § 43-205 (Supp. 1971). Under the Grimmett opinion, which is controlling here, the trial court erred in refusing to suppress the evidence obtained by means of the search warrant.

We find no other reversible error. The defendant’s requested instruction upon the State’s burden of proof was fairly covered by the court’s instruction upon that subject. We need not pass upon the sufficiency of the evidence, for the State’s proof will necessarily be different if the case is retried. There is no reason to think that other asserted errors will recur upon a new trial.

Reversed.

Holt, J., not participating. Special Justice J. S. Brooks joins in the majority opinion. Harris, C. J., and Fogleman and Jones, JJ., dissent.