The opinion
Steele Hays, Justice, dissenting. My disagreement with the majority opinion is limited to the issue of whether appellant’s arrest for public intoxication was merely a pretext to gain evidence to support the murder charge. Because I believe there was probable cause to arrest Nathan Richardson for public intoxication, I have a different view of the issue of pretext. If probable cause existed, then, on the circumstances of this case, we should leave to the trial court whether the underlying motive was bona fide.
There was testimony that Mr. Richardson had been drinking when he was picked up at about 9:00 a.m. There was also proof from which the trial court could have found, as it did, that he was not then intoxicated. At the courthouse, waiting to be interrogated, Mr. Richardson made a half dozen trips to the restroom, showing increasing evidencé of intoxication. In the early afternoon, at the behest of his own nephew, a deputy, Richardson was searched and an empty one-half pint bottle of whiskey was found in his boot. The testimony of the nephew and two other officers provided a substantial basis for the finding of the trial court that there was probable cause to arrest Richardson for public intoxication.
I concede there are cases prohibiting a pretextual arrest, some of which the majority has cited. But none of those cases withstand close comparison with the case before us. In Amador-Gonzales v. United States, 391 F.2d 308 (5th Cir. 1968), the appellant, under surveillance for selling drugs, was arrested for an improper left turn, held to be a pretext. But there one of the officers admitted he arrested appellant in order to search his car for drugs. In McKnight v. United States, 183 F.2d 977 (App.D.C. 1950), the only case cited in Richardson’s brief, the government conceded that the police could have executed the warrant for McKnight’s arrest on the street, but deliberately waited until he entered a private residence so they could effect a search for evidence of a numbers operation. In State v. Haven, 269 N.W.2d 849 (Minn. 1978), the arrest was illegal because of defects in the warrant (for traffic offenses) and while the court noted that even if the warrant had been proper the result would be the same, that was because the police had passed up opportunities to arrest Haven, waiting for him to get in his car, a search of the car being the real objective of the arrest. In United States v. Carriger, 541 F.2d 545 (6th Cir. 1976), without probable cause to arrest, officers entered a private apartment by slipping past a locked entrance under circumstances described by the Court of Appeals as amounting to criminal trespass.
Those cases, I submit, are distinguishable. Two cases more comparable to this case are Brown v. State, 442 N.E.2d 1109 (Ind. 1982) and Porter v. State, 391 N.E.2d 801 (Ind. 1979). In both cases the defendants were suspected of more serious offenses and, while under surveillance, were charged with intoxication. Though the evidence was marginal in both cases, there was probable cause to arrest on the lesser charges. The Brown Court said:
The issue of a pretext arrest only arises when the surrounding circumstances show that the arrest is only a sham being used as an excuse for making a search for evidence of a different and more serious offense for which no probable cause to arrest exists. (Cites omitted). Here, the circumstances show that the police had seen defendant drinking alcoholic beverages and made a valid arrest on that charge. The fact that defendant was also a suspect in the rape cases does not make that arrest improper. (My emphasis).
When we remanded this case to the trial court after the first appeal we asked it to make findings of fact on whether the arrest for public intoxication was proper. The trial court did that as instructed and since there is substantial evidence to support those findings I would not reverse. I do not suggest by this dissent that this case was handled properly at the outset. Quite the contrary. The long delay in bringing Richardson before the court for arraignment and the violation of A.R.Cr.P. 2.3 are clear infractions of the rules in criminal cases, but we have not held that those violations mandate dismissal of criminal charges. If we intend to adopt that as the law, we should say so and be done with it.
Hickman, J., joins this dissent.