# Mann v. City of Heber Springs > Supreme Court of Arkansas · November 15, 1965 · 239 Ark. 969 URL: https://www.frixlaw.com/law-library/cases/9766306 ## Case - **Full name:** Mann v. City of Heber Springs - **Court:** Supreme Court of Arkansas - **Decided:** November 15, 1965 - **Citations:** 239 Ark. 969; 395 S.W.2d 557; 1965 Ark. LEXIS 1120 - **Precedential status:** Published - **Opinion:** Dissent by Harris - **Judges:** Holt, Harris, Johnson - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9766306 ## Opinion text Cakleton Harris, Chief Justice, (dissenting). I am unable to agree with the manner in which this case is disposed of by the majority, for it is extremely difficult for me to distinguish this case from Williams v. State, 237 Ark. 569 , 375 S. W. 2d 375 , mentioned by the majority in their opinion. There, one of the defendants was arrested, and the officers attempted to search his home; however, the defendant’s wife would not permit the officers to enter until they had obtained a search warrant. Thereafter, the officers obtained a search warrant, but the warrant was clearly void, and of no effect, and this court so found. In the instant case, it is likewise conceded that the search warrant was void. With the search warrant in Williams, the officers proceeded to make a search of the house, but found nothing. Again, • we have the same situation present in the instant case. Defendant’s house was searched, but nothing was found. In Williams, this court then said: “* * * so such search, though illegal, obtained no evidence; and thus the search of the Holeman house passes out of the case. If any evidence had been obtained in the Holeman house we would promptly hold that such was illegally obtained. ’ ’ Likewise, I feel that the search warrant passes out of the picture in the present case, though the majority is holding that the search of appellant’s automobile was based on the warrant, being “merely a continuation of and contemporaneous with a search made under an admittedly invalid warrant.” Again, referring back to Williams, the state’s evidence disclosed that the defendants were arrested and charged with burglary and grand larceny. Some of the . defendants told the officers that stolen property was stored in a trailer in Faulkner County. Two accompanied the officers, and pointed ont the house trailer; one of the defendants unlocked the door to the trailer, and nearly all of the stolen property was found therein. On trial, appellants moved to suppress the evidence obtained from the search, contending that the search was unlawful, and in violation of their constitutional rights. This court said: * * Were the appellant’s constitutional protections against unreasonable search and seizure violated by the officers thus obtaining the articles from the •trailer and detailing the evidence concerning same? Here, there was evidence, not only of waiver and consent, but also of active participation in the search; so there is no merit to the contention of the defendants that their rights against unreasonable search and seizure were violated insofar as concerns the articles in the trailer. In 79 C. J. S. p. 816 et seq., ‘Searches and Seizures’ § 62, there is a discussion of waiver and consent; and the holdings from the various jurisdictions — including the United States Supreme Court — are summarized: “The constitutional immunity from unreasonable searches and seizures may be waived, as by a voluntary invitation or consent to a search or seizure. Thus individuals may waive their immunity to illegal searches of their persons, possessions, or dwelling houses, as well as to the illegal search of their premises, places of business, and searches and seizures of books, papers, or records. Hence, one who has thus consented to a search cannot thereafter complain of irregularities in the search warrant, or question its sufficiency or the manner of its issuance, since an invitation or consent to the search dispenses with the necessity of a search warrant altogether. ’ ’ It is thus clearly established that this court, as well as the Federal courts, has said that consent to a search dispenses with the necessity of a search warrant. Let it be remembered that the Constitution does not protect from all searches (without a warrant), but only those that can be considered unreasonable. There are then only two simple questions in this case. First, did appellant consent to the search? Second, was the search reasonable, or was there a proper cause to make same? If either of these questions can be answered “Yes”— then, in my view, this case should be affirmed. Actually, I think both questions can be answered in the affirmative. Here, Melvin Mann, the appellant, unlocked the trunk of the car himself, and there is no evidence that he objected, in any manner, to the search. As in Williams, the defendant not only consented, but even participated in- the search. Likewise, I am of the opinion that the evidence reflects the search to be reasonable, and based upon probable cause, i.e., the officers had sufficient reason to believe that the car contained whiskey. Let us first remember that, clearly, appellant had the reputation of being a bootlegger. This is even competent evidence in the trial of a. defendant for engaging in the illicit trade of intoxicating liquors. Ark. Stat. Ann. § 48-940 (Repl. 1964) provides that the general reputation of a defendant for moonshining or bootlegging shall be admissible in evidence in prosecuting violations of the liquor control act. Chief Bolin testified that he had been informed that appellant was in possession of illegal whiskey, and also testified that he had information that Mann was bringing a load of whiskey into Cleburne County. It develops that,Bolin received this information from other officers, and these officers, in turn, received information from a filling station operator, which information, the majority state, only amounted to the fact that Mann had filled his automobile with gasoline, and had gone out of town. I do not know the language used by the filling station operator in giving the officers the tip, but it is certainly definite that, whatever the language used, the officers gained the impression that Mann had left town to obtain a load of whiskey. 1 The information was explicit enough that they, shortly thereafter, reported to the chief that they had learned that appellant was bringing a load of whiskey into the county. The police chief testified that Mann’s automobile seemed to be a little “heavily loaded” in the back, and this testimony was corroborated by Patrolman Beach, who testified, “Well, it was sitting’ down a little bit low, like a little extra weight was in the trunk. * * * ’ ’ In Burke v. State, 235 Ark. 882 , 362 S. W. 2d 695 , cited by the majority, this court held that an automobile was properly searched for illegal whiskey because the officers had reasonable or probable cause to suspect that the car contained same. There, the defendant bore the reputation of a bootlegger; the vehicle had the appearance of being heavily loaded, and a strong odor of “wild-cat” whiskey seemed to come from the car. Thus, we have only the additional circumstance in the Burke case of the smell of whiskey, and I cannot agree that that circumstance made the Burke search legal, while the search in the instance case was illegal. This is a very fine distinction — too fine, I think. The Iieber Springs officers testified that the reason they did not search the automobile first was because they thought appellant had had sufficient time to take the whiskey into the house, and they apparently paid little attention to the car until after ascertaining that no whiskey was in the home. I commend my brethren of the court for being zealous in protecting one’s constitutional rights, but I feel that they have gone further, in suppressing this evidence, than the court has gone in prior cases. Under recent United States Supreme Court decisions, the task of the officer in obtaining competent evidence in divers types of prosecutions has been made much more difficult; restrictions have been placed upon him; evidence that was once held admissible is now held inadmissible, and I am fearful that many of our police officers are becoming discouraged. I think that I, too, believe in protecting one’s constitutional rights, but I am just as interested in protecting the rights of the general public. Here, we have a defendant, who, beyond question, was violating the provisions of the Arkansas Alcoholic Control Act. Here was a man who, likewise, had previously violated the provisions of this act. Here was irrefutable evidence— (forty-eight half-pints of whiskey) — that appellant held no regard for our statutory requirements. Yet, with the suppression of this evidence, appellant goes “scot free” for, of course, the state is without evidence, if this testimony of the officers, and the forty-eight half-pints, cannot be introduced. I would affirm the conviction. One thing is obvious — irrespective of how he expressed it to the officers, the information given to the police by the filling station operator was accurate, as evidenced by the fact that forty-eight half-pints of “Medley Brothers” whiskey was found in the trunk. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766306. Public record. Not legal advice.