Petition — Bedell v. Arkansas

Supreme Court, U. S$,

Li

In The | MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1976

xo.__%6- 10 14

HOYLE BRUCE BEDELL,

Petitioner,

v.

THE STATE OF ARKANSAS,

Respondent.

i

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

——

GEORGE R. MILNER

555 Griffin Square

Suite 968

Dallas, Texas 75202

(214) 651-1121

RONALD L. GORANSON

555 Griffin Square

Suite 968

Dallas, Texas 75202

(214) 651-1121

Counsel For Petitioner

Of Counsel:

HOOVER, JACOBS ANDSTOREY

By O. H. STOREY, Ill

500 Tower Building

Little Rock, Arkansas 72201

(501) 372-4125

Ee ES

SOUTHWESTERN LAW PRESS — DALLAS, TEXAS — (214) 742-4257

INDEX

Page

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Ee vos ek ete es hcenbeeneseheteobmsnaee 2

Ge Be Ee PTET. os cma cccevescdeccoes aeaain 2

CONSTITUTIONAL PROVISIONS INVOLVED ........ 2

EP e Re ee e Gl BONNE GPUs k' sc reddioesensscucedes 2

REASONS FOR GRANTING THE WRIT.............. 4

SPEEA n6bWWAWh babu ch cb Ckc KOAUES dcds Co oe nee 7

ew Be ee ere 8

IR 60644 5 dee edd dd decasé oeeadeeentiates A-|

PE TE Ki oe nnd Oubncedia ikon corks eeivedetk A-l1

SLT 5400-4 cheb dnadowed'ne nase halen enamel A-14

il Table of Authorities

Page

Air Pollution Variance Board v. Western Alfalfa,

I MED 2c0 ioe i tee 6 cee ok el oe 7

Bedell v. State. 257 Ark. 895, 521 S.W.2d 200

hs F dee iden ok end te deee hen bebbhecct beats 1,3

Commonwealth v. Treftz, 351 A.2d 265 (Penn.Sup.

Me MN 6 cb Tbe tN nb nudes Cedbebwbivesedsddccdetsti 7

Hester v. United States, 265 U.S. 57 (1924)............ 3,5,6

Jones v. United States, 557 U.S. 493 (1958). .............. 5

Katz v. United States, 389 U.S. 347 (1967) .............. 5.6

McDonald v. United States, 335 U.S. 451

Di UMtCUre a. cLetucde sea Ghab be éaedes onketeleceGm 5

Patler v. Slayton, 503 F.2d 472

ee a ee dab beton smasteandsa 7

People v. Abruzzi, 385 N.Y.S.2d 94

eee on ds Denes Ghe bas ud6 sense eeds bee 7

People v. Huddleston, 347 N.E.2d 76

i ths Cece ee den eeksesidowes Cone 7

Silverthorne Lbr. Co. v. United States,

Neen es ad bl woeeben 5

Turner v. Arkansas, 407 U.S. 366 (1972) ..............05. 4

Turner v. State, 251 Ark. 499, 473 S.W.2d

i a a. | bn isieb ened 4

Turner v. State, 248 Ark. 367, 452 S.W.2d

ESSERE REPRE SESS 9 9 Se ce ae ee a ee 4

United States v. Davis, 423 F.2d 975

i des Ee eG re ke de ee tie as o's 6

United States v. Holmes, 521 S.W.2d 859

ee ci dais Re cubes 6'odbebadesastes 6

United States ex rel. Gedko v. Heer, 406

Pa UE as WHE SUPER evs cccnccecsdedoesorees 6

Wong Sun v. United States, 371 U.S.

ES heb fn8-o rurd BCs Sab o6 scan ebekeccbacnts 5

he

In The

Supreme Court of the United States

OCTOBER TERM, 1976

a

NO.

————

HOYLE BRUCE BEDELL,

Petitioner,

Vv.

THE STATE OF ARKANSAS,

Respondent.

—

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

= -—

The petitioner, HOYLE BRUCE BEDELL, respectfully prays

that a writ of certiorari issue to review the judgment of the

Supreme Court of Arkansas in this case.

OPINIONS BELOW

The first opinion of the Supreme Court of Arkansas is reported

at Bedell v. State, 257 Ark. 895, 521 S.W.2d 200 (1975), attached

hereto as Appendix A.

After a retrial, the case was again appealed to the Arkansas

Supreme Court. The opinion is unreported at this time, but is

attached hereto as Appendix B.

2

JURISDICTION

The judgment of the Supreme Court of Arkansas was entered

on September 20, 1976. Rehearing was denied on October 25,

1976 (attached hereto as Appendix C). The jurisdiction of this

Court is invoked under 28 U.S.C. Sec. 1257(3).

QUESTION PRESENTED

Whether the marijuana seized from the property of the

petitioner with the authority of a search warrant and introduced

into evidence was seized in violation of U.S. Const. amend. iV as

applied to the States by U.S. Const. amend. XIV?

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. amend. IV:

“The right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue,

but upon probable cause, supported by oath or affirrhation,

and particularly describing the place to be searched, and the

persons or things to be seized.”

U.S. Const. amend. XIV, section 1:

. nor shall any State deprive any person of life, liberty,

or property, without due process of law .

STATEMENT OF THE CASE

The sheriff of Randolph County, Arkansas, received

information that marijuana was growing on property owned by

Hoyle Bruce Bedell. The property consisted of 306 acres: all but

20-30 acres of the property is heavily forested. On September 29,

1973, the sheriff and his deputy went into the State of Missouri

and entered Mr. Bedell’s property from the north side. The two

law enforcement officers traversed wild, unimproved woodlands,

3

srossing a barbed wire fence that they supposed to mark the north

soundary of Mr. Bedell’s property. Approximately a quarter mile

from the fence, the officers entered a partially cleared field where

one marijuana plant was found. The officers proceeded to a

second clearing where seventeen marijuana plants were found.

The officers then proceeded past a little thicket and found twenty-

seven plants in a third clearing. On October 4, 1973, the officers

returned to the property and reaffirmed the presence of the

marijuana plants in the three clearings. The marijuana plants

were not visible from any public road or the boundaries of the

Bedell property.

The officers obtained a search warrant on October 5, 1973. The

search warrant was based upon an affidavit of the sheriff relating

his observations while on the property. The execution of the

search warrant resulted in the seizure of marijuana in Mr. Bedell’s

house and from the clearings. Mr. Bedell was charged with

manufacturing marijuana. Mr. Bedell’s motion to suppress the

evidence was denied and he was convicted of the charged offense.

‘He appealed to the Supreme Court of Arkansas. On March 31,

1975, the Supreme Court of Arkansas ruled that the prohibition

against unreasonable searches and seizures did not extend to

open fields and forested areas, citing Hester v. United States, 265

U.S. 57 (1924). See Bedell v. State, 257 Ark. 895,521 S.W.2d 200

(1975). However, the conviction was reversed because of the

failure to give an instruction to the jury requested by the defense.

A second trial was conducted, Mr. Bedell’s motion to suppress

evidence was again denied, and he was again convicted of

manufacturing marijuana. Mr. Bedell raised several grounds of

error on the second appeal to the Supreme Court of Arkansas,

including the search question. The Supreme Court of Arkansas

affirmed on all issues raised, stating on the search issue:

4

“Our ruling upon the first appeal, that the prohibition

against unreasonable searches and seizures does not extend

to open fields and forested areas, has become the law of the

case and will not be re-examined. The doctrine known as the

law of the case applies to issues of constitutional law.

Feldman v. State Board of Law Examiners, 256 Ark. 384,

507 S.W.2d 508 (1974); Miller Lbr. Co. v. Floyd, 69 Ark.

472, 275 S.W. 741 (1925) affirmed, 273 U.S. 672 (1927). . .

If the appellant thought our first decision to be wrong he had

the opportunity to seek a review by the United States

Supreme Court.”

REASONS FOR GRANTING THE WRIT

Mr. Bedell would first note that the failure of the Supreme

Court of Arkansas to reconsider the search issue does not bar

consideration of the issue by this Court. In Turner v. Arkansas,

407 U.S. 366 (1972), this Court reversed a robbery conviction

where the Supreme Court of Arkansas had refused to consider a

collateral estoppel issue because of the “law of the case,” See

Turner v. State, 251 Ark. 499, 473 S.W.2d 904 (1971) and Turner

v. State, 248 Ark. 367, 452 S.W.2d 317 (1970).!

' Petitioner would also note that the doctrine is based upon the public policy to

cause an end to litigation. Miller Lbr. Co. v. Floyd, supra; Turner v. State, 25!

Ark. 499, 473 S.W.2d 904 (1971). However, the doctrine snould not be utilized

to accomplish an injustice. Cochran v. M & M Transportation Co., 110 F.2d

519 (1st Cir. 1940); England v. Hospital of the Good Samaritan, 14 Cal.2d

791,97 P.2d 813 (Cal.Sup.Ct. 1939). Since it is not a limit on the power of the

court, Naples v. United States, 359 F.2d 276(D.C. Cir. 1966); United States v.

Fuller, 277 F.Supp. 97 (U.S.D.C. D.C. 1967), it should not be used when

compelling circumstances call for a redetermination, particularly where there

are intervening or continuing changes in the applicable law. Ryan v. Mike-

Ron Corp., 66 Cal. Rptr. 224 (Cal.Ct.App. 1968); CIR v. Netcher, 143 F.2d

484 (7th Cir. 1944).

Other considerations indicating the inapplicability of the doctrine in this case

are that it would promote piecemeal litigation, it would be cost prohibitive to

criminal defendants to expend funds on discretionary writs knowing that a

pending retrial is im the immediate future, and it would add to the already

crowded docket of this Court.

5

It is well settled that searches conducted outside the judicial

process without prior approval by a magistrate are per se

unreasonabie, subject only to a few specifically established

exceptions. U.S. Const. amends. IV and X!V; Katz v. United

States, 389 U.S. 347 (1967). The exceptions are jealously and

carefully drawn, Jones v. United States, 357 U.S. 493 (1958), and

there must be a showing by those who seek exemption from the

warrant requirement that the exigencies of the situation made the

course imperaiive. McDonald v. United States, 335 U.S. 451

(1948).

In the present case, if the first intrusion upon Mr. Bedell’s

property was the result of an unlawful search, themthe marijuana

seized as a result of the search warrant issued after the intrusion

would be excludable under the “fruit of the poison tree” doctrine.

Wong Sun v. United States, 371 U.S. 471 (1963); Silverthorne

Lbr. Co. v. United States, 251 U.S. 385 (1920).

Hester v. United States, 265 U.S. 57 (1925) is often cited for the

proposition that contraband seen in “open fields” is not protected

by the Fourth Amendment. In Hester, officers may have gone

onto the defendant’s property and observed him give a bottle toa

third person. An alarm was then given. The defendant and the

third person fled, abandoning two bottles of distilled spirits. This

Court held that there was no search since the bottles had been

abandoned. The defendant also contended that he had been

compelled to give evidence against himself, to which the Court

stated:

“As to that, it is enough to say that, apart from the

justification, the special protection accorded by the Fourth

Amendment to the people in their ‘persons, houses, papers

and effects,’ is not extended to the open fields.”

It is obvious that the “expectation of privacy. doctrine”

6

expressed in Katz v. United States, supra, must limit the “open

field” doctrine of Hester v. United States, supra,? \n United States

v. Homes, 521 F.2d 859 (Sth Cir. 1975), en banc hearing gr@nted,

525 F.2d 519 (Sth Cir. 1976), a panel of the circuit court reversed a

marijuana conviction for several reasons, one of which was the

trespass upon the defendant’s property to oDserve marijuana

stored in a shed. The property involved in United States v.

Holmes, supra, was similar to the property involved in the present

case in that it was secluded. The circuit court heid that when a law

enforcement officer trespasses solely to unearth evidence of a

crime, he has no right to be in the position to have the view. The

opinion stated:

“Whatever precautions a homeowner in an urban area might

have to take to protect his activity from the senses of a casual

passerby, a dweller in a rural area whose property is

surrounded by extremely dense growth need not anticipate

that government agents will be crawling through the

underbrush. . .” aie

See also United States v. Davis, 423 F.2d 975 (Sth Cir. 1970).

The balancing between the two doctrines is also distinctly

stated in United States ex rel. Gedko v. Heer, 406 F.Supp. 609

(W.D. Wis. 1975). In that case officers had knowingly climbed

over a fence onto the defendant’s wooded and hilly property and

overheard certain incriminating conversations. The district court

rejected a sterile application of the “open fields” doctrine, and

held that Hesier v. United Staies, supra, no longer had any

independent meaning except inscfar as it indicated that “open

fields” were not areas in which one traditionally could have

expected privacy. The district court held that the factual situation

? See | Antieau, Modern Constitutional Law, Sec. 2.2. p. 160, where the “open

field” doctrine is criticized.

7

clearly indicated an “expectation of privacy” from law

enforcement officers !urking in the bushes.

Petitioner contends that a person living in a densely wooded

area has a reasonable expectation that law enforcement officers

will not be climbing his fences and trespassing more than a

quarter mile upon his property. A person may not have a

reasonable expectation of privacy from observations conducted

or conductable from a neighbor’s property, cf. Air Pollution

Variance Board v. Western Alfalfa, 416 U.S. 861 (1974), but such

a situation did not exist in this case. The officers made an

observation from a place where they had no right to be. These

observations invaded the petitioner’s reasonable expectation of

privacy.

The decision of the Supreme Court of Arkansas is based upon

an interpretation of law that is not in accord with the decisions of

this Court. Also, the issue has not been precisely determined by

this Court. Finally, there appears to be a difference in the circuits

and the States as to the current extent of the “open fields”

doctrine. Compare Patler v. Slayton, 503 F.2d 472 (4th Cir. 1974)

with United States v. Holmes, supra; People v. Abruzzi, 385

N.Y.S.2d 94 (N.Y. App. 1976) with Commonwealth v. Treftz, 351

A.2d 265 (Penn. Sup.Ct. 1976). See also People v. Huddleston,

347 N.E.2d 76 (Ill.App.Ct. 1976) (dissenting opinion of Justice

Strouder).

CONCLUSION

For the reasons set forth above, petitioner respectfully submits

that a writ of certiorari should issue to review the judgment and

opinion of the Supreme Court of Arkansas.

Respectfully submitted,

~

GEOR R. MILNER

555 Griffin Square

Suite 968

Dallas, Texas 75202

(214) 651-1121

RONALD L. GCRANSON

555 Griffin Square

Suite 968

Dallas, Texas 75202

(214) 651-1121

Counsel For Petitioner

Of Counsel:

HOOVER, JACOBS AND STOREY

By O. H. STOREY, Ill

500 Tower Building

Little Rock, Arkansas 72201

(501) 372-4125

7

~

CERTIFICATE OF SERVICE

| hereby certify that three copies of this Petition for Writ of

Certiorari were mailed, postage prepaid, to the Hon. William

Clinton, Attorney General, tice Building, Little Rock,

Arkansas, 72201, on this

ALD L. GORANSON

555 Griffin Square

Suite 968

Dallas, Texas 75202

(214) 651-1121

Counsel For Petitioner

A-!

APPENDIX A

SUPREME COURT OF ARKANSAS

No. CR-74-150

Hoyle Bruce Bedell,

Appellant,

v.

State of Arkansas,

Appellee.

Opinion Delivered MAR 31, 1975

Appeal from Randolph Circuit Court, Harrell Simpson, Judge

Reversed and Remanded

CONLEY BYRD, Associate Justice

The appellant, Hoyle Bruce Bedell, was charged by

information with the crime of manufacturing marijuana in that he

“did unlawfully, wilfully, and feloniously grow and manufacture

marijuana (Cannabis sativa L.).” Upon conviction at a jury trial

he was sentenced to six years in the penitentiary and fined $3,000.

On appeal to this court Bedell has designated the following

points he relies on for reversal:

I. The initial warrantless and unconsented search by

government authorities, or ranging, of the defendant's farm lands

beyond view from public roads was a trespass, constituting an

illegal act which tainted all evidence flowing and resulting from

this trespass as ‘fruit of the poisonous tree,’ and the court erred in

overruling defendant’s motion to suppress evidence.

A-2

Il. The subsequent search warrant issued pursuant to the

initial warrantless searches was limited to search of the

defendant’s curtilage and residence, and a _ warrantless

contemporaneous search of the defendant’s three hundred six

(306) acre farm was unauthorized, and the defendant’s fourth

amendment right should be recognized to extend to adjacent

fenced farm lands contiguous to one’s residence.

ill. The court erred by fatally prejudicing the jury in admitting

evidence regarding defendant’s possession and use of marijuana

given the present circumstances of the defendant’s procedural

severance of the charges of (1) manufacturing marijuana and (2)

possession of marijuana with intent to deliver, and in view of the

court’s refusal to give defendant's jury instruction number ten

(10).

1V. The court erred in refusing defendant’s proposed jury

instruction number ten (10) which properly described the scope of

the statutory definition of ‘manufacture.””

The facts appear as follows: The appellant owned a 306 acre hill

farm in Randolph County and lived in a house adjacent ta, the

highway on the front or east side of the property. Much of the

farm was in timber with small cleared areas near the middle of the

west or back side of the tract of land. The fields or cleared areas

were surrounded by timber with especially heavy timber and

underbrush lying north of the cleared areas.

In September, 1973, the sheriff of Randolph County obtained

information that marijuana might be growing on the appellant’s

land so he and one of his deputies entered the tract through heavy

timber at the northwest corner of the tract and first found what

appeared to be a single marijuana plant growing ina cleared area,

referred to in the testimony as field No. |. The officers returned to

the area a few days later and found 17 plants in the second area; 27

plants in a third area, and 76 plants growing in still another

cleared area. All the plants were in a state of cultivation with

A-3

sawdust and what appeared to be fertilizer having been placed

around them. The growing plants were located by following

plastic pipes running from what was described as a small holding

pond near a newly drilled water well and running to the area

where the marijuana plants were found. The officers found the 76

plants in field No. 4 by following a hose which was attached to a

pump installed in a dug well or cistern at an old house place on the

property. A plastic line also ran from this well in an easterly

direction past a sawdust pile at an old sawmill set and then on

toward the house where Bedell lived. The sheriff and his deputy

confiscated the growing marijuana and preserved it in a black

plastic bag, later introduced into evidence as state’s exhibit No. 1.

The sheriff testified that the marijuana plants were planted or set

out in “hills” and that he observed hills in the four cleared areas

where no plants were then growing.

On the basis of the information thus obtained, the sheriff

obtained a search warrant and he and his deputies searched Mr.

Bedell’s ‘house where they found a pillowcase containing

marijuana; a glass bottle or jar containing marijuana cigarette

butts; a plastic box containing marijuana cigarette butts, and a

paper bag containing marijuana. These items, together with the

plants taken from the fields, were introduced into evidence.

POINTS I & Il. We agree with the state that the Fourth

Amendment to the Constitution only protects against

unreasonable searches and seizures of persons, houses, papers

and effects and does not extend to open fields and forested areas.

See Hester v. United States, 265 U.S. 57,68 L. Ed. 898, 44S. Ct.

445 (1924). Consequently we find no merit in points I & IL.

POINTS Ill & IV. The appellant’s third assignment, as

designated, also includes his fourth assignment. We find no merit

A-4

to the first part of the appellant’s third assignment. We gather

from the argument in appellant’s brief that he may have been

charged in a separate case with possession of marijuana with the

intent to deliver, but there is no evidence that the jury was made

aware of such additional charge. The appellant was being tried on

the charge of manufacturing marijuana. The 121 growing

marijuana plants were discovered in, and obtained from, fields on

the appellant’s land some distance from the house where he lived

and, there was testimony indicating that the fields contained

numerous hills where plants had been set or grown. The

marijuana plants were all surrounded by sawdust and a large

sawdust pile was located near the center of appellant’s tract of

land. A new well had been drilled on the back side of the

appellant’s property with plastic pipe running to the area where

marijuana plants were being cultivated. A gasoline pump with

hose connected was found installed in a well or cistern on

appellant’s property. The hose from the pump ran to the area

where the 76 marijuana plants were located, and a hardware

merchant from Missouri testified that he sold the pump to the

appellant. A filling station operator and gasoline motor mechanic

from Missouri testified that he repaired the pump for the

appellant. The sheriff testified, under cross-examination by the

appellant's attorney, that it was his understanding the appellant

had not lived on his property but a few months. So we conclude

that the marijuana found in the appellant’s house was strong

circumstantial evidence that it was he who was growing the

marijuana being cultivated on his farm and that it was admissible

in evidence for that purpose.

We now come to the trial court’s refusal to give appellant's

Instruction #10. The Uniform Controled Substances Act, Ark.

Stat. Ann. §§ 82-2601-—82-2638 (Supp. 1973), is an overall Act

;

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A-5

pertaining to all of the many controlled substances including

marijuana. Section 82-2601 (m) reads as follows:

“(m) ‘Manufacture’ means the production, preparation,

propagation, compounding, conversion or processing of a

controlled substance, either directly or indirectly by

extraction from substances of natural origin, or

independently by means of chemical synthesis, or by a

combination of extraction and chemical synthesis, and

includes any packaging or repackaging of the substance or

labeling or relabeling of its container, except that this term

does not include the preparation or compounding of a

controlled substance by an individual for his own use or the

preparation, compounding, packaging, or labeling of a

controlled substance:

(1) by a practitioner as an incident to his administering or

dispensing of a controlled substance in the course of

professional. practice; or

(2) by a practitioner or by his authorized agent under his

supervision for the purpose of, or as an incident to, research,

teaching, or chemical analysis and not for sale.” [Emphasis

ours].

The trial court instructed the jury in part as follows:

“6. The law defines ‘manufacture’ to mean the production,

including the planting, cultivating, growing or harvesting of

a controlled substance, preparation, propagation,

conversion or processing of a controlled substance.”

[Emphasis ours].

"7. Manufacture means the production, preparation,

propagation, conversion or processing of a controlled

substance either directly or indirectly by extraction from

substances of natural origin or depending by means of

chemical synthesis, and includes any packaging or

repackaging of the substance, or the labeling or relabeling of

it, and it does include the growing or the cultivating of it.”

[ Emphasis ours].

A-6

The appellant's requested Instruction No. 10 which was refused

by the court reads as foliows:

“10. You are hereby instructed that Manufacturing

Marihuana means to grow, to produce, to cultivate, to

propagate orto harvest marihuana, either directly by natural

agricultural production or indirectly or independently, by

means of chemical synthesis, and specifically excludes a

practitioner or his agent preparing, compounding,

packaging, prescribing, dispensing, ordering, or analyzing

marihuana in the course of his professional practice, and also

specifically excludes the preparation or compounding of the

controlled substance of marihuana by an individual for his

own use.” [Emphasis ours].

Obviously the exception in the definition of manufacture as to

“the preparation or compounding of a controlled substance by an

individual for his own use” was placed in the act because one’s use

of a controlled substance is only a misdemeanor whereas

possession for any other purpose is a felony. ,

The evidence from which a jury might have drawn an inference

that Bedell had prepared or compounded marijuana for his own

use came primarily from the sheriff and his deputy. The found: a

pillowcase containing marijuana in the closet in the southwest

bedroom of his home; a glass jar and a plastic box, both

containing marijuana cigarette butts (the cigarettes had been

smoked) under Bedell’s bed; and a paper sack containing

marijuana on a bedroom closet shelf. The fact that there were

cigarette butts in some containers along with the loose marijuana

in others certainly constituted evidence that would justify a belief

that Bedell had “prepared” marijuana. When considered in the

light of the fact that the cigarettes had been smoked, the inference

that Bedell had prepared marijuana for his own use was certainly

reasonable.

A-7

The jury found Bedell guilty of manufacturing marijuana. It

had been instructed that “manufacture” included “preparation”

or “processing”. It had also been instructed that “manufacture”

means production, preparation, propagation, conversion or

processing and includes any packaging or repackaging of the

substance. It was not told that preparation of the substance by an

individual for his own use is specifically excluded.

Since there was evidence that Bedell had prepared marijuana

for his own use, the jury should have been told that this did not

constitute manufacture. Consequently, the trial court erred in

refusing appellant’s requested Instruction #10.

Reversed and remanded for the error indicated.

Harris, C.J., George Rose Smith and Jones, JJ. dissent.

DISSENTING OPINION

J. FRED JONES, Associate Justice

I do not agree with the majority opinion in this case. It is my

opinion the trial court did not err in refusing to give the

appellant’s instruction No. 10.

As pointed out in the majority opinion, the Uniform

Controlled Substances Act, Ark. Stat. Ann. §§ 82-2601 —82-2638

(Supp. 1973), is an overall Act pertaining to all of the many

controlled substances including marijuana. As I read § 82-2601

(m) its interpretation is plain. “Manufacture” means either the

production, the preparation, the propagation, the compounding,

the conversion or the processing of a controlled substance, either

directly or indirectly by extraction from substances of natural

origin, or independently by means of chemical synthesis, or by a

A-8

combination of extraction, etc. The controlled substance is the

object of the manufacture by any one or combination of these

processes.

1 am unable to read from the evidence in this case that the

appellant was engaged in the manufacture of a controlled

substance through the process of preparation or compounding.

The controlled substance, marijuana. is a plant and is simply not

manufactured by preparation or compounding. It is

manufactured by production and Ark. Stat. Ann § 82-2601 (u)

(Supp. 1973) states: “‘Production’ includes the manufacture,

planting, cultivation, growing or harvesting of a controleld

substance.” That was what the appellant was charged with and

was convicted of. The exception set out in § 82-2601 (m) “except

that the term [manufacture] does not include the preparation or

compounding of a controlled substance by an individual for his

own use. . .”(emphasis added) simply does not apply to growing

marijuana. gh

Bedell was not charged in this case with the possession of

marijuana for any purpose. The evidence that he even possessed

marijuana inside his home was offered for the purpose, and the

sole purpose, of showing his connection with the marijuana that

was still growing in, and had been harvested from, his fields. My

main reason for dissent in this case is stated by the majority as

reason for their reversal. The majority opinion says:

“The evidence from which a jury might have drawn an

inference that Bedell had prepared or compounded

marijuana for his own use came primarily from the sheriff

and his deputy. They found: a pillowcase containing

marijuana in the closet in the southwest bedroom of his

home; a glass jar and a plastic box, both containing

marijuana cigarette butts (The cigarettes had been smoked)

under Bedell’s bed; and a paper sack containing marijuana

on a bedroom closet shelf.”

A-9

The majority then say that the fact there were cigarette butts in

some containers along with loose marijuana in others, certainly

constituted evidence that would justify a belief that Bedell had

“prepared” marijuana. As | view this case, the mere fact that the

jury might so find, as the majority indicate, was a better reason for

not giving appellant’s instruction No. 10 than it was for giving it.

The marijuana in this case had already been grown and harvested

and the manufacturing process by production had been

completed before it was placed in the pillowcase and paper bag

and stored in the appellant's home. All that was left for the

appellant to do was lie in bed and enjoy the fruits of his labor. The

cigarette butts found in the jar and the plastic container under

appellant’s bed, to me, were simply evidence that he had been

smoking in bed and had not emptied his ashtrays. Certainly it was

no evidence he was manufacturing marijuana by preparation or

compounding. It was only evidence that he had harvested some of

his marijuana crop and had produced smoke from the marijuana

he had grown and harvested.

Apparently the majority feel that unless the appellant smoked

the entire marijuana plant, stalk, roots, leaves, seed and all, the

jury could have reasonably found he prepared and compounded,

and thereby manufactured, the leaves he did smoke. The

harvesting of marijuana and stripping the leaves from the stalk

could be considered preparation and compounding as easily as

rolling a cigarette from the leaves or placing the leaves in a

pillowcase or paper bag; consequently, under appellant's

instruction No. 10, he could have argued that he only prepared

and compounded his entire marijuana crop for his own use.

Now if Bedell had been charged and tried for manufacturing

marijuana by the unusual, if not impossible, process of

preparation or compounding a controlled substance then,

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perhaps, he would have been entitled to the defense that he only

prepared and compounded it for his individual use and had not

manufactured it, within the meaning of § 82-2601 (m), supra, but

this was not the case. The trial court throughout the trial of this

case admitted the marijuana found in the appellant’s home to

show the chain of title from the fields to the appellant’s home and

the evidence was limited to that purpose. The appellant did not

testify and he offered no evidence as to his intended use of the

marijuana found on his farm or in his home.

I would affirm the judgment.

Harris, C.J. and George Rose Smith, J., join this dissent.

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APPENDIX B

SUPREME COURT OF ARKANSAS

No. CR 76-77

HOYLE BRUCE BEDELL,

Appellant,

STATE OF ARKANSAS,

Appellee.

Opinion Delivered September 20, 1976.

Appeal from Randolph Circuit Court; Harrell Simpson,

Judge.

Affirmed.

GEORGE ROSE SMITH, Associate Justice

GEORGE ROSE SMITH, J. This is the second appeal in a

prosecution for the offense of manufacturing marihuana. The

salient facts were stated in the first opinion and need not be

repeated. Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200 (1975).

Upon a second trial Bedell was again convicted and was sentenced

to a five-year term and a $2,500 fine. Several points for reversal

are argued.

The appellant is mistaken in his argument that the manufacture

of a controlled substance for one’s own use is not an offense. The

personal-use exemption applies only to the preparation or

compounding of such a substance. Ark. Stat. Ann. § 82-2601 (m)

(Supp. 1975). Manufacture, however, includes production, which

in turn includes planting, cultivating, and growing the substance.

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§ 82-2601 (u). There is abundant proof that Bedell was growing

marihuana on his farm. In fact, he so admitted on the witness

stand.

There was no prejudicial error in the procedure by which the

State introduced the marihuana plants into evidence. The State’s

expert witness, Manuel Holcomb, a chemist identified the

exhibits as marihuana. His qualifications as a chemist are not

questioned. He testified that a chemical analysis is essential in the

identification of marihuana. That testimony rebuts the

appellant’s argument, made without proof, that only a botanist

should be permitted to identify the plant. We do not find

Holcomb’s analysis to have been deficient. He tested at least one

of the plants that were taken from the field and visually checked

other plants in the same bag. He also tested other specimens of

marihuana that were discovered in Bedell’s home. There was no

defect in the important chain of custody; that is, from the officer's

seizure of the plants in the fields to their delivery of the plants to

Holcomb. It is true that the exhibits were not kept constantly

under lock and key after their use as evidence at the first trial, but

that was merely a circumstance to be considered by the jury in

weighing the testimony. Rogers v. State, 258 Ark. 314, 524 S.W.

2d 227 (1975).

Our ruling upon the first appeal, that the prohibition against

unreasonable searches and seizures does not extend to open fields

and forested areas, has become the law of the case and will not be

re-examined. The doctrine known as the law of the case applies to

issues of constitutional law. Feldman v. State Board of Law

Examiners, 256 Ark. 384, 507 S. W. 2d 508 (1974); Miller Lbr. Co.

v. Floyd, 169 Ark. 473, 275 S.W. 741 (1925), affirmed, 273 U.S.

672 (1927). Hence it is immaterial that a federal trial coust, after

our decision upon the first appeal in this case, decided the point

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the other way. United States ex rel. Gedko v. Heer, 406 F. Supp.

609 (W.D. Wis. 1975). If the appellant thought our first decision

to be wrong he had the opportunity to seek a review by the United

States Supreme Court.

Affirmed.

We agree. Harris, C.J., and Fogleman and Jones, JJ.

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APPENDIX C

State of Arkansas

In the Supreme Court

BE IT REMEMBERED, That at a term of the Supreme Court

of the State of Arkansas, begun and held at the Court Room in

the City of Little Rock, on the 4th day, being the first Monday of

October, A.D. 1976, amongst others were the following

proceedings, to-wit:

On the 25th day of October, A.D. 1976, a day of said term

Hoyle Bruce Bedell

No. CR76-77 Appellant Appeal from Randolph

vs. Circuit Court.

State of Arkansas

Appellee ey a

Rehearing denied.