Russ v. City of Camden

Lyle Brown, Justice.

Appellant Isiah Russ was convicted by a jury of possessing intoxicating liquor for the purpose of sale without a license. The only point for reversal which we deem necessary to discuss — and in fact the only point considered to have merit — is the allegation that error was committed by the State in not producing an alleged search warrant at the trial.

For their search of the home and premises of appellant, the officers said they relied on a search warrant. The officers testified that the original warrant was handed to appellant, that he read it and handed it back to the officers. Appellant and his wife testified that they never were served with such a warrant; in fact, that one was never shown them. Be that as it may, the important fact is that in the trial of this case in circuit ‘ court, the officers were questioned concerning the whereabouts of the search warrant. The reply was to the effect that it was introduced in evidence in the trial in municipal court. Documents purporting to be a transcript of the municipal court proceedings were filed in the circuit court. No search warrant, nor affidavit for search warrant, appears among those papers.

The United States Constitution, Amend. 4, and the Arkansas Constitution, Art. 2 § 15, are the cornerstones of our security against unreasonable search and seizure. Those constitutional requirements, together with our most recent statute, Ark. Stat. Ann. § 43-205 (Supp. 1973), rigidly protect the issuance of a search warrant without support of an accompanying affidavit for the search warrant. In Mapp v. Ohio, 367 U.S. 643 (1961) there was this situation which that court thought worthy of comment: “At the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for”. When the State relies on a search warrant as justification for its search the burden is on it to show compliance with the statute, both as to the affidavit and the warrant itself. The responsibility is on the State to produce those documents at trial; otherwise, the accused has no opportunity to assail their validity. If the State cannot produce either of the instruments then it should follow approved procedure for establishing the contents thereof.

In view of the possibility of a retrial we should comment on one other argument advanced here. Appellant contends it was the duty of the State to produce for cross-examination the informer who purportedly made a purchase of intoxicants from appellant. The privilege of a police officer in refusing to divulge the identity of an informer depends upon the circumstances of a given case. Davis v. Circuit Court of Pulaski County, 244 Ark. 142, 424 S.W. 2d 149 (1968). In Bennett v. State 252 Ark. 128, 477 S.W. 2d 497 (1972), we said: “Generally, whether the privilege of nondisclosure of an informer’s identity applies depends upon whether the informer was present and participated in the alleged illegal transaction with which the defendant is charged, or whether the informer was ‘merely’ one who supplied only a ‘lead’ to law enforcement officers to assist them in the investigation of a crime. The identity of an informer is required in certain instances, particularly where he was present as a participant”.

Reversed and remanded.

Harris, C.J., dissents. Fogleman.J., dissents.