Petition — Arkansas v. Haynes

” Supreme Court, U.S.

FILED

OCT 24 1980

80-691

MICHAEL RODAK, JR., CLERK

Supreme Court Of The United States

OCTOBER TERM, 1980

STATE OF ARKANSAS,

Petitioner,

vs.

WILLIAM THOMAS HAYNES

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

STEVE CLARK

Attorney General of Arkansas

Victra L. FEWELL

Assistant Attorney General

Justice Building

Little Rock, Arkansas 72201

(501) 371-2007

Attorneys for Petitioner

REQ. NO. 7179-23859 50 COPIES

—_————i—eeooeee_

II.

i

QUESTIONS PRESENTED FOR REVIEW

Whether the Arkansas Supreme Court erroneously

interpreted and applied Payton v. New York, —— U.S.

——, 100 S.Ct. 1371, 63 L.Ed. 2d 639 (1980), in reversing

this conviction because of the introduction of evidence

seized pursuant to a valid search warrant but after

officers made a warrantless arrest of defendant in his

motel room.

Whether the Arkansas Supreme Court erred in re-

versing this conviction in light of Rawlings v. Kentucky,

48 U.S.L.W. 4885 (U.S. June 25, 1980) (No. 79-5146),

which the Arkansas Court apparently did not consider.

i

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ........

GIT GUE MNE is cease dcvciccccccccccccs

CONSTITUTIONAL PROVISIONS ....... aa eer

STATEMENT OF THE CASE ...................

REASONS FOR GRANTING THE WRIT:

I. The Arkansas Supreme Court erroneously in-

terpreted and applied Payton v. New York,

— US. —, 100 S.Ct. 1371, 63 L.Ed. 2d 639

(1980), in reversing the conviction in this case. .

A. Payton is not controlling because the war-

rantless arrest was made under exigent

eS aN nnd eho ths 6esiese s'9.09 0.06

B. Payton is not controlling because a valid

‘search warrant was obtained independently

of the arrest and the evidence introduced at

at trial was seized pursuant to that warrant.

II. The evidence at issue in this case was admissible

under Rawlings v. Kentucky, 48 U.S.L.W. 4885 ~

vere

(U.S. June 25, 1980) (No. 79-5146). ..........

Eee Se acinbeehevac sn ecceceesccce

APPENDIX:

Haynes v. State, 269 Ark. Adv. Sh. 506 (1980) ....

Tere

TABLE OF AUTHORITIES

CASES: Page

Adams v. Williams, 407 U.S. 143 (1972) .............0.. 4

Chapman v. United States, 365 U.S. 610 (1961) .......... 4

Cupp v. Murphy, 412 U.S. 291 (1973) ...........ceeeees 4

Haynes v. State, 269 Ark. Adv. Sh. 506 (1980) .... 2, 3,9, 11,

12, 15, 17, 18, 19, 20

Johnson v. United States, 333 U.S. 10 (1948) ........ 4,13

Michigan v. DeFillippo, 443 U.S. 31 (1979) ............. .3

Payton v. New York, —— U.S. ——, 100 S.Ct.

1371, 63 L.Ed. 2d 639 (1980) ............ 1, 2, 3, 7, 9, 10,

13, 15, 19, 20

Rawlings v. Kentucky, 48 U.S.L.W. 4885 (U.S.

June 25, 1980) (No. 79-5146) .... 13, 14, 15, 16, 17, 19, 20

Riddick v. New York, —— U.S. ——-, 100 S.Ct. 1371,

OP Ris ee Ge OD 6 Ces iacccaaennniaeennwssens 2,3

Schmerber v. California, 384 U.S. 757 (1966) ............ 4

United States v. Jeffers, 342 U.S. 48 (1951) ........ 4,7, 19

Vale v. Louisiana, 399 U.S. 30 (1970) ...0....... cee eee 4

Warden v. Hayden, 387 U.S. 294 (1967) ....... 4,12, 12, 19

CONSTITUTIONAL PROVISIONS AND STATUTES:

Fourth Amendment to the United States

CIN 65-0 eriicastnentaemenaaeonns 1, 12, 15, 17, 18

Fourteenth Amendment to the United States

UNNI -~-a-u-a-ncoanncraeremrt Gk an Ra Ae en 1

Ark. R. Crim. Proc. 10.1(a), Ark. Stat. Ann.

Valk. GA ak Gy CI Br os Ei ieenes 10, 11

MISCELLANEOUS:

Rules of Supreme Court of the United States,

effective June 30, 1980, Rule 17.1(c) ............. 19, 21

iv

OPINIONS BELOW

The opinion of the Supreme Court of Arkansas is re-

ported at 269 Ark. Adv. Sh. 506 (1980) and is printed herein

as Appendix “A”. The record of the hearing on respondent’s |

motion to suppress and of his trial, together with other

parts of the record before the Supreme Court of Arkansas

are filed herewith and designated as Appendix “B”. Peti-

tioner’s petition for rehearing was denied on August 25,

1980, without opinion. The only reported reference to that

per curiam order is found at 270 Ark. Adv. Sh. No. 1 (un-

numbered page). ,

JURISDICTION |

The opinion of the Arkansas Supreme Court was filed

July 7, 1980, and is reported at 269 Ark. Adv. Sh. 506

(1980). Petitioner’ petition for rehearing was denied with-

out opinion in a per curiam order entered on August 25,

1980. The only reported reference to that order is found in

270 Ark. Adv. Sh. No. 1 (unnumbered page). This petition

for a Writ of Certiorari is filed within ninety days of that

date. Jurisdiction of this Court is. invoked pursuant to 28

U.S.C. §1257 (3).

CONSTITUTIONAL PROVISIONS

Fourth Amendment, United States Constitution:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized.

Fourteenth Amendment, United States Constitution:

_ [N]or shall any State deprive any person of life,

liberty or property, without due process of law....

v

STATEMENT OF THE CASE

The Harrison, Arkansas, Police Department began an

investigation of respondent’s illegal trafficking in illicit

drugs about 8 p.m. on April 22, 1978, when a confidential

informant reported that respondent had 55 “blotter hits”

of lysergic acid diethylamide (LSD) in the refrigerator of

his motel.room at the Apple Valley Inn. The police con-

ducted an intermittent surveillance of Soom 114 of the inn

on the night of April 22.

On April 23, 1978, at approximately 8:30 p.m., the same

informant was searched, given a $5 bill with recorded

serial numbers and sent to make a controlled buy from

respondent. The informant was unsuccessful, and the police

increased their surveillance to include Room 116 of the

inn, as respondent had also been seen entering and leaving

that room on the evening in question. The same informant

was again sent by the police to make a controlled buy and

was apparently again unsuccessful.

Police then saw one Kenneth Drewry leave Room 116

and stopped him when he pulled into a driveway in a resi-

dential area known not to be his residence. Drewry had

made controlled buys for the police before, and he volun-

teered to make one from respondent. He was taken to the

police station, where he was searched and given a $5 bill

with recorded serial numbers. Drewry was followed by one

police officer from the police station until his movements

could be seen by the police officers who were watching the

motel rooms.

Police officers at the motel observed Drewry meet

respondent, who left Room 114. Drewry and respondent

then entered Room 116, where Drewry had earlier seen

vi

respondent selling blotter tabs of LSD to other persons.

Drewery gave the respondent the $5 bill previously given

to him by the police, and the respondent sold him two

“hits” of LSD. A policeman followed Drewry back to the

police station, where a detective conducted a standard field

test for hallucinogens on one of the blotter tabs Drewry

bought from respondent. The results of the test revealed

that the blotter tab contained an hallucinogen, which the

detective had reason to believe was LSD.

' At that time, officers at the police station determined

that there was probable cause to search the rooms involved

in the transaction, and instituted proceedings to secure a

search warrant for both Rooms 114 and 116. They also

advised the officers watching the motel that they were in

the process of procuring a search warrant.

In the meanwhile, Officer Galen Hutchinson of the

Criminal Investigation Division, Narcotics Enforcement

Section of the Arkansas State Police, and other officers

continued to watch the motel. Hutchinson had been asked

by the Harrison police to assist in the irivestigation. Prior

to Drewry’s return to the motel, Hutchinson observed

about half a dozen people enter and leave Room 116. There

were also several vehicles parked nearby. Hutchinson was

notified that Drewry was supposed to make a controlled

buy from respondent, and the surveillants observed Drewry

enter and leave Room 116. After Drewry left, Hutchinson

was advised that the controlled buy had taken place, that

the field test had revealed the presence of an hallucinogen

and that a search warrant was being sought.

At about the same time, the officers at the motel

observed several people leaving the vicinity of Rooms 114

and 116, and they feared that illicit drugs were being »

vii

further distributed. Other officers stopped various persons

observed leaving Room 116 as they left the Vicinity of the

motel. .

Hutchinson determined after receiving the information

about the controlled buy that he had probable cause to

arrest respondent and that officers should secure the

premises in order to prevent further distribution of de-

struction of the drugs.

Hutchinson first approached Room 116, in which he

found two persons, one of whom had arrest warrants out-

: standing. When a second officer arrived, Hutchinson -pro-

_ ceeded to Room 114, where he found the door standing

slightly ajar. Hutchinson identified himself as a police offi- —

cer and announced that he was conducting a drug investiga-

tion and was looking for respondent. When the respondent

verbally identified himself, Hutchinson entered the room

without drawing his gun. After respondent produced his

driver’s license identification, Hutchinson placed him

under arrest’and remained in Room 114 with the intention

of securing the premises until the search warrant arrived.

At about the same time, a second officer at the scene

apparently kicked in the door of Room 115, which was

unoccupied and in which no guests were apparently

registered. That officer then watched the occupants of

Room 116 while Hutchinson secured respondent’s room.

Three officers remained in and around Room 114 until

the search warrant was served about three and a half hours

later. Although one of the officers and the respondent told

conflicting stories about ‘the discovery of a small quantity

of marijuana found in a film canister before the search

warrant was served, no actual search was made of the

premises prior to the arrival of the warrant. |

viii '

The affidavit for the ‘search warrant was signed by .

Detective Donald J. Hamilton of the Harrison Police De-

partment. Hamilton had personally received information

about respondent’s possession and/or sale of illicit drugs -

from both confidential informants who assisted the police.

The affidavit (T. 17-19) stated the grounds on which

Hamilton based his belief that there were illicit drugs in

both Rooms 114 and 116 and in three vehicles parked out-

side the rooms. Hamilton also éxecuted an affidavit regard-

ing the reliability of the informants, stating specifically in

what prior cases they had assisted the police in making

arrests in cases‘involving illicit drugs and stolen property.

(T. 20) Drewry also signed a written statement regarding

his involvement in the controlled buy. (T. 26-27)

A hearing was held on the issuance of the warrant, and

a transcript of that hearing is found at T. 23-25. Following

that hearing, Municipal Judge Buford Gardner issued the

search warrant, finding probable cause to search Rooms

114 and 116 of the Apvle Valley Inn and a 1974 Ford

Courier. He refused to i. ‘ude in the warrant authorization

to search two other vehicles parked outside the rooms. (T.

21-22)

When the warrant was executed, officers seized 21

blotter type “hits” of LSD from respondent’s checkbook, a

film canister containing marijuana, a marijuana cigarette,

. the $5 bill with which Drewry paid for the two “hits” of

LSD and two “bongs” or pipes used to smoke marijuana.

Respondent filed a motion to suppress the seized evi-

dence on August 10, 1978. (T. 12-13) The motion challenged

the validity of the search warrant only to the extent that

it was connected with a warrantless arrest and detention of

the respondent.

| :

A pretrial hearing was held on respondent’s motion on

- September 15, 1978, at which time respondent, his father

(who was also his roommate in Room 114 at the time of the

search), and three police officers, including Hutchison,

testified.

Although the trial court did not file an order ruling on

the motion, it ruled at the conclusion of the hearing that it

found probable cause for the search warrant and for the

arrest and held that the officers “had not only the right but

the duty to secure the premises and to prevent any disposi-

tion of the drugs or further circulation of same and the

Court denies the Motion to Suppress.” (T. 131)

The seized evidence, which included approximately six

ounces of marijuana and 609 micrograms of LSD, were in-

troduced at trial over respondent’s continuing objection.

The jury found appellant guilty as charged: He was sen-

tenced to one year’s imprisonment and a fine of $1,000.00

for possession of marijuana, to 20 years’ imprisonment and

a fine of $15,000.00 for delivery of LSD, and to 20 years’

imprisonment and a fine of $15,000.00 for possession of .

LSD with intent to deliver. The trial court ordered the two

20-year terms to be served consecutively.

The warraritless arrest and the introduction of evidence

seized pursuant to the search warrant were both raised on

appeal to the Arkansas Supreme Court. In a 4-3 opinion,

that Court apparently found the intrusion, detention and

search illegal under Payton v. New York, —— U.S. ——,

109) S.Ct. 1371, 63 L.Ed. 2d 639 (1980) and held that there

were no exigent circumstances to justify arresting the

respondent without a warrant. The court also relied on

Ark. R. Crim. Proc. 10.1(a), Ark: Stat. Ann. Vol. 4A at 457

(Repl. 1977), which defines “search” as “any intrusion

x

other than an arrest.” While the majority’s reliance on Rule

10.1(a) implies that the court found that respondent was

not actually arrested by police, it also quoted Officer

Hutchinson’s testimony that he arrested respondent. With

regard to the search warrant, the majority stated:

“Admittedly, there was no search warrant; therefore, the

search and the seizure prior to the receipt of the warrant

were not authorized.”. Haynes v. State, 269 Ark. Adv. Sh.

506, 512 (1980).

) The minority found that while the seizure of the

marijuana might have been the result of an unreasonable

search, the seizure of the LSD was made pursuant to a

valid search warrant. It found sufficient evidence that

respondent’s arrest had been made pursuant to exigent

circumstances and probable cause, finding that there was

evidence of “a compelling need for official action in the

form of an arrest and ‘securing the area’ of the intended

search.” The minority based its dissent on the fact that |

there was sufficient evidence to uphold the findings of the

trial court, which should not have been reversed absent a

finding that they are clearly against the preponderance of

the evidence. 269 Ark. Adv. Sh. at 517.

Petitioner filed a timely petition for rehearing, which

was denied without opinion by per curiam order entered

on August 25, 1980. Reference to that order is made at 270

Ark. Adv. Sh. Vol. 1 (unnumbered page) (August 25,

1980). . . '

OCTOBER TERM, 1980

NO.

STATE OF ARKANSAS,

Petitioner,

_ VS.

WILLIAM THOMAS HAYNES

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

REASONS FOR GRANTING THE WRIT

I. THE ARKANSAS SUPREME COURT ERRONEOUS-

LY INTERPRETED AND APPLIED PAYTON v. NEW

YORK, —— U.S. ——, 100 S.Ct. 1371, 63 L.Ed. 2d 639

(1980) IN REVERSING THE CONVICTION IN THIS

CASE.

In Payton v. New York, —— U.S. ——, 100 S.Ct. 1371,

63 L.Ed. 2d 639 (1980), this Court held that the Fourth

Amendment to the United States Constitution, made ap-

plicable to the States by the Fourteenth Amendment,

“prohibits the police from making a warrantless and non-

consensual entry into a suspect’s home in order to make a

routine felony arrest.”

In Payton, police assembled enough evidence to estab-

lish probable cause that Payton had committed a murder.

They went to his apartment without a warrant, used a

crowbar to break down the door am entered. They found

no one there, but they seized a .30-cauber shell casing that

was in plain view and which was later introduced into

evidence at Payton’s murder trial. 63 L.Ed. 2d at 645.

In a companion case, Riddick v. New York, police

officers, without a warrant, entered the home of the defen-

dant nine months after he was identified as the robtor by

the victims of two armed robberies and about two months

after the police learned his address. The officers searched

the house and seized narcotics and related paraphernalia

from a chest of drawers. Riddick was subsequently indicted

on narcotics charges, and the trial court denied a motion to

suppress the evidence seized at the time of the arrest. 63

L.Ed. 2d at 646.

While Payton held specifically that it is a violation of

a suspect’s constitutional rights to arrest him in his own

home without a warrant, the practical effect is to exclude

any evidence which may have been seized in conjunction

with such an arrest.

The Arkansas Court found Payton to be controlling in

Haynes v. Arkansas, 269 Ark. Adv. Sh. 506, 512 (1980),

desp.te these significant factual differences: (1) the war-

rantless arrest was made under exigent circumstances; (2)

the determination of probable cause to search was made

independently of the arrest; and (3) the incriminating

evidence used against Haynes at trial was seized pursuant

to a valid and unchallenged search warrnt.

A. Payton is not controlling because the warrantless

arrest was made under exigent circumstances.

This Court specifically noted in Payton that, although

it was arguable that “the warrantless entry to effect Pay-

ton’s arrest might have been justified by exigent circum-

stances, none of the New York courts relied on any such

justification.” Since the New York Court of Appeals treated

both Payton and Riddick as involving “routine felony

arrests in which there was ample time to obtain a warrant,”

this Court did the same. The Court also noted that these

cases did not present the occasion “to consider the sort of

emergency or dangerous situation, described in our cases

as ‘exigent circumstances,’ that would justify a warrantless

entry into a home for the purpose of either arrest or search.”

63 L.Ed. 2d at 648-49. This issue is presented, however, in

Haynes.

By holding that Payton was controlling in Haynes and

noting that Payton did not apply when exigent circum-

stances existed, the Arkansas Supreme Court at least

impliedly held that there did not exist in Haynes sufficient

exigent circumstances to distinguish it from Payton.

Haynes, 269 Ark. Adv. Sh. at 511-12.

This Court has held that arrests without warrants must

be based on probable cause. It defined such probable cause

in Michigan v. D&Fillippo, 443 U.S. 31, 37 (1979) as:

facts and circumstances within the officers’s

knowledge that are sufficient to warrant a

prudent person, or one of reasonable caution,

in believing in the circumstances showing that

the suspect has committed, is committing or

is about to commit an offense. (Citation omit-

ted.)

4

This Court has further held that “appropriate police

response” should not be thwarted “when a credible in-

formant warns of a specific impending crime.” Adams v.

Williams, 407 U.S. 143, 147 (1972).

Cases involving warrantless arrests almost always

involve warrantless searches. Although the warrantless

search issue is not present here, it would seem that circum-

stances sufficiently exigent to justify both a warrantless

arrest and warrantless search would justify only a warrant-

less arrest. These exigent circumstances have been

enumerated by this Court as “exceptional situations,” Vale

v. Louisiana, 399 U.S. 30 (1970), including the risk of escape

of a felon whose whereabouts are known (along with

weapons and other evidence of the crime), Warden v.

Hayden, 387 U.S. 294 (1967); the risk of destruction of evi-

dence, Cupp v. Murphy, 412 U.S. 291 (1973); Schmerber v.

California, 384 U.S. 757 (1966); United States v. Jeffers,

342 U.S. 48 (1951); and the risk of contraband goods about

to be removed from the jurisdiction, Chapman v. United

States, 365 U.S. 610 (1961); Johnson v. United States, 333

U.S. 10 (1948).

In this case, Detective Donald Hamilton of the Harri-

son, Arkansas, Police Department testified that his investi-

gation of Haynes began about 8:00 p.m. on April 22, 1978,

when a confidential informant told him that Haynes had

55 “blotter hits” of LSD in the refrigerator of his apartment

or motel room. (T. 153-154) The police then conducted an

intermittent surveillance of Room 114 of the Apple Valley

Inn on the night of April 22. On April 23, 1978, at approxi-

mately 8:30 p.m., the same informant was searched, given

a $5 bill with recorded serial numbers and sent to make a

controlled buy from Haynes. (T. 155-156) The informant

was unsuccessful, and the police increased their surveil-

lance to include Room 116 of the Apple Valley Inn, as

Haynes had been seen entering and leaving that room also.

The informant was again sent in to make a controlled buy

and apparently failed a second time. (T. 157-159)

Police then saw one Kenneth Drewry leave Room 116

and stopped him when he pulled into a driveway in a resi-

dential area where police knew he did not live. Drewry

had made controlled buys for the police before, and he

agreed to make one from Haynes. He was taken to the

police station, where he was searched and given a $5 bill

with recorded serial numbers. Drewry was followed by

one police officer until he was within sight of the two

officers who were watching the motel. (T. 159-160)

Hamilton next saw Drewry when he returned to the

police station and executed signed documents which, along

with Hamilton’s own affidavits, (T. 26-27; 17-20) were the

basis for the later issuance of the search warrant.

Drev'ry testified that he was stopped by police after he

left Room 116 of the motel about 7:30 or 8:00 p.m. (T. 271)

and that he volunteered to make a controlled buy from

Haynes. (T. 293) He was taken to the police station, then

returned to Room 116 of the inn. He gave Haynes the $5 bill

previously given to him by the police, and Haynes sold him

two hits of LSD. (T. 274-275) A policeman followed Drewry

back to the police station, where Detective Hamilton field

tested one of the’small white tabs of blotter paper sold by

Haynes for the presence of LSD. (T. 275-276)

Drewry testified that he had earlier that evening seen

Haynes sellirig LSD to other persons in Room 116. (T. 286,

288-289 ) |

Detective Hamilton testified that when Drewry re-

turned to the police station, he (Hamilton) conducted a

standard field test on one of the pieces of paper Drewry

bought from Haynes. The results were positive for an

hallucinogen, which Hamilton said he had reason to

believe was LSD. (T. 173-174) The purpose of conducting

the test, Hamilton testified, was to determine that police

“were actually going after drugs and not plain white blotter

paper.” (T. 190)

Officer Galen Hutchinson of the Criminal Investigation

Division, Narcotics Enforcement Section of the Arkansas

State Police, testified that he was contacted by Detective

Hamilton on April 23 to assist in an investigation at the

Apple Valley Inn. (T. 191-192) Prior to Drewry’s return to

the motel, Hutchinson had assisted in watching Rooms 114

and 116, outside which he observed about a half dozen

people and several vehicles. (T. 193) Hutchinson was aware

that Drewry was supposed to make a controlled buy of

narcotics or dangerous drugs from Haynes. (T. 194) After

Drewry left, Hutchinson was advised by radio that the buy

‘had taken place, that the field test revealed the presence

of an hallucinogen and that a search warrant was being

procured. (T. 195)

Detective Robert Post of the Harrison Police Depart-

ment testified that when he confirmed that the controlled

buy. had been made, he related that information to

Hutchinson. (T. 123)

At that point, Hutchinson said, several people were

leaving the vicinity of Rooms 114 and 116, and he feared

that the drug was being distributed. He testified that he

also believed he had probable cause at that time to arrest

Haynes. He then decided “we should go ahead and secure

7

the rooms and make our arrest of the individuals.” (T. 196)

Hutchinson testified at the suppression hearing that the

decision to arrest Haynes and secure the area was made

because he feared both that evidence would leave the

motel and that dangerous drugs would get “on the street.”

(T. 86)

Petitioner will not argue that a motel room cannot be

a “home” within the meaning of Payton. That argument

was probably nullified by United States v: Jeffers, 342 U.S.

48, 51-52 (1951), at least with respect to the expectation of

privacy in a hotel room being of constitutional dimensions.

It would seem obvious, however, that Haynes’ “residence”

in the motel room gave rise to such an inference of

transiency as to support a belief that his flight was a real

danger. This is especially true in view of the fact that

several of the other visitors at the Apple Valley Inn on the

night in question had been alerted that the police were

conducting an investigation into drug traffic there. (T.

106) It is not unlikely that one of them would have warned

Haynes and given him time to either flee or dispose of the

incriminating evidence before an arrest warrant could be

obtained. Minutes, perhaps even seconds, were crucial once

the first of his friends was alerted to the police investiga-

tion.

A second and related factor to consider is the relative

ease with which Haynes could have disposed of the contra-

band. It is certainly not unknown to this Court that disposal _

of illicit drugs is frequently effected by flushing the

evidence down the nearest toilet. The type and quantity

possessed by Haynes here certainly seems to be easily

subject to such disposal.

Haynes testified that he arrived at the motel room

about 9:30 or 10:00 a.m. the morning of his arrest and that

he had not been there at all the day before. (T..67) This is

evidence that a belief that he was a transient was justified

in fact. He also testified that in September, 1978, he was no

longer living in Boone County, where the inn is located.

Haynes’ father testified that he had only lived at the motel

with his son since April 1, 1978, and that they occupied

three different rooms before he vacated the premises some

time in May, about a month or a month and a half after

moving in.:(T. 53-54)

It is also clear as a matter of common sense that it

would have been far easier for Haynes to gather his per-

sonal possessions and flee from a motel room than it might

have been if he had established permanent residence in a

house or an apartment. The mere fact of living in a motel,

coupled with the testimony regarding the transiency of

the father and son, makes it clear that their residence, even

if sufficient for some purposes under the Fourth Amend-

ment, was intended to be temporary. The police had every

reason to believe that Haynes was prepared to flee their

jurisdiction at a moment’s notice. They also had every

reason to believe that notice was likely to be imminent.

A third reason that exigent circumstances existed here

is that the police were fully aware that Haynes had already

sold some of his store of controlled substances that eve-

. ning. As at least two of the officers testified, they were

concerned that additional drugs would be sold if he were

not taken into custody immediately after the sale to the

informant was confirmed. (T. 86, 106)

The exigent circumstances present in this case, then,

were the danger of Haynes’ immediate flight, either tem-

porary or permanent, from his temporary living quarters

and the danger that the drugs would be either disposed of

or distributed before his apprehension.

The facts outlined above support Hutchinson’s belief

that sufficient exigent circumstances were present to

justify the warrantless arrest of Haynes. The action taken

here seems to fit well into this Court’s dictum in Payton

noting that even the appellants there conceded that “if an

exigency arises necessitating immediate ‘arrest in the

course of an orderly investigation, arrest without a warrant

is permissible.” Payton, 63 L.Ed. 2d at 660 n. 55.

Petitioner’s position here is bolstered by the dissent of

the three-justice minority of the Arkansas Supreme Court

in Haynes. The dissenting opinion, written by Mr. Chief

Justice Fogleman, found adequate evidence of exigent

circumstances, probable cause for the warrantless arrest of

Haynes and evidence of a “compelling need for official

action in the form of an arrest and ‘securing the area’ of the

intended search.” Haynes, 269 Ark. Adv. Sh. at 513-17.

Petitioner therefore submits that Payton is not control-

ling in Haynes and does not require a reversal of Haynes’

conviction. Although the warrantless arrest may be more

suspect in light of Payton, exigent circumstances existed to

justify prompt police action. This case also presents an

excellent opportunity for this Court to hold squarely what

exigent circumstances need be present to distinguish such

cases from Payton.

The Court should grant this petition for writ of

Certiorari because the Arkansas Supreme Court erroneous-

ly held that the the circumstances existing in Haynes were

not sufficiently exigent to distinguish it from Payton. This

10

case also presents an opportunity for this Court to define

“exigent circumstances” as used in Payton, an important

question of federal constitutional law which has not been,

but should be, decided.

B. Payton is not controlling because a valid search

warrant was obtained independently of the arrest,

and the evidence introduced at trial was seized

pursuant to that warrant.

Even if the arrest of Haynes were found to be illegal

under Payton, the subsequent search was made pursuant to

a valid search warrant. That warrant rendered the search

itself valid and rendered admissible any evidence obtained

under authority of the warrant.

The search warrant itself (T. 21- 22) and the affidavits

on which it was based (T. 17-20) were challenged by

Haynes in a pretrial motion solely on the ground that the

warrant was tainted because it was procured while Haynes

was being detained in his motel room by police. (T. 12) The

trial.court denied the motion to suppress after a pretrial

hearing. (T. 131) Haynes conceded on direct appeal that

the search warrant and the affidavits in support thereof

were not challenged at trial. He did not raise the issue of

the validity of the warrant or affidavits on appeal. His

argument was based on the premise that Haynes was not

arrested before the search warrant was executed and that

his detention by police to secure the area while awaiting

the search warrant was instead an intrusion tantamount

to an illegal search under Ark. R. Crim. Proc. 10.1(a), Ark.

Stat. Ann. Vol. 4A at 457 (Repl. 1977). -

The findings of the Arkansas Supreme Court on this

issue are not clear. The majority apparently agreed with

11

Haynes that the entry of the police officers into the motel

room was an intrusion tantamount to an illegal search under’

_ Ark. R, Crim. Proc. 10.1(a), Ark. Stat. Ann. Vol. 4A at 457

(Repl. 1977). The Arkansas Court apparently disregarded

testimony by Officer Galen. Hutchinson both at the sup-

pression hearing and at trial that he placed Haynes under

arrest and informed him of his Miranda rights almost im-

mediately after entering the motel room. (T. 96, 198, 210)

The fact that Haynes was arrested removes the detention

from the definition of “search” in Ark. R. Crim. Proc. 10.1

(a). The court also apparently disregarded testimony by

three police officers that the room was not searched until

after the search warrant was served. (Hutchinson, T. 88,

198; Lucas, T. 109, 218; Post, T. 127, 242) This testimony

was corroborated by Haynes’ father,-who was also his

roommate. (T. 64-65)

Even Haynes, who testified at both the suppression

hearing and at trial, never contended that the police officers

searched for or discovered any of the seized evidence

(except a small quantity of marijuana hidden in a film

canister) prior to the arrival of the search warrant. (T-

73-75)

The Arkansas Court apparently treated the case as if

no warrant was properly obtained and executed. It did note

the existence of the warrant, -however. Haynes, 269 Ark.

Adv. Sh. at 511. Near the end of its opinion, the majority

makes this internally inconsistent statement: “Admittedly,

there was no search warrant; therefore, the search and the

seizure prior to the receipt of the warrant were not

authorized.” 269 Ark. Adv. Sh. at 512.

The three-judge minority found acceptable the holding

that the seizure of the marijuana (apparently that

12

found in the film canister) was unreasonable. It found the

seizure of the LSD, however, to be “the fruit of a search

pursuant to a search warrant which the officers were un-

able to produce until 3 1/2 hours after they knew there was

a probable cause for a search of the motel room in which

it was found.” It further found the facts of the case to

reflect a “successful search pursuant to a proper warrant.”

269 Ark. Adv. Sh. at 513. The minority also found that.

“Hutchinson carefully limited the intrusion by not actually -

conducting a search for evidence (contraband) until the

search warrant arrived. There was an evidentiary basis for

a finding that he did not extend his intrusion beyond the

scope reasonable (sic) related to the initial interference.”

269 Ark. Adv. Sh. at 516.

No exigent circumstances are required to justify the

search, as it was based on a valid warrant, issued subse-

quent to, but independent from, the arrest. Here the pro-

cedure for obtaining the search warrant had been put into

motion even before probable cause to arrest had been

determined to exist and before the officers entered the

motel room. (T. 109, 195) The only connection between the

arrest and the search was that the controlled buy by the

confidential informant was the determinative factor for a

finding of probable cause in both police actions. The search,

in short, was not made incident to the arrest.

The Fourth Amendment right to be free from searches

is not unlimited. This Court has held that the Fourth

Amendment allows intrusions upon privacy “made after

fulfilling the probable cause and particularity requirements

of the Fourth Amendment and after the intervention of a

‘neutral and detached magistrate. ...’” Warden v. Hayden,

13

387 U.S. 294, 309 (1967), quoting Johnson v. United States,

333 U.S. 10 (1948).

The search warrant here was issued pursuant. to the

sworn affidavits of the police officer, Hamilton, who had

been conducting the investigation, based on the information

he had received from two previously reliable informants

and his own personal knowledge of the circumstances

surrounding the controlled buy. It was issued by a munici-

pal judge after a hearing, part of which is transcribed, (T.

23-25) The judge’s attention to detail regarding the par-

ticularity of the warrant, is illustrated by his refusal to let

officers search two vehicles originally listed on the warrant

and his limiting the search only to the 1974 Ford Courier

. belonging to Haynes. (T. 21, 23-24) The three requirements

of Hayden were met, and the sufficiency of the warrant

itself has never been challenged by Haynes.

The Arkansas Court therefore erred when it held that

the evidence seized pursuant to the warrant should have

- been suppressed. It also erred in finding Payton to control,

as Payton did not involve the procurement of a valid search

warrant prior to the search and seizure. This Court should

grant the. petition for writ of certiorari.to clarify that the

Payton rule does not apply in cases in which a valid search

warrant is properly obtained and executed.

II. THE EVIDENCE AT ISSUE IN THIS CASE WAS

ADMISSIBLE UNDER RAWLINGS v. KENTUCKY,

48 U.S.L.W. 4885 (U.S. June 25, 1980) (No. 79-5146).

The facts of this case which distinguished it from

Payton also make applicable this Court’s reasoning and

holding in Rawlings v. Kentucky, 48 U.S.L.W. 4885 (U.S.

14

June 25, 1980) (No. 79-5146). Rawlings was filed less than

two weeks before the Arkansas Supreme Court filed its

opinion in Haynes, which did not cite Rawlings.

_In Rawlings police officers arrived at the residence of

one’Marquess with a warrant for his arrest. Marquess was

not at home, and while the officers were searching the

house for him, they smelled marijuana smoke and saw

marijuana seeds. Two officers left to procure a search

warrant, and the others detained one resident of the house

and four visitors. Officers refused to let anyone leave the

premises unless he or she agreed to a body search. The

occupants of the house were detained for approximately 45

minutes until the search warrant arrived. When the police

began their search, petitioner claimed ownership of drugs

found by the police in the purse of another person detained.

Police immediately searched the petitioner and placed him

under arrest after finding $4,500 and a knife on his person. _

The major issue of Rawlings involved the admissi-

bility of petitioner’s admission that he owned the drugs,

alleged to be the fruit of an illegal detention. This Court

held, however, that the statements were made voluntarily

as “acts of free will unaffected by any illegality in the

initial detention.” 48 U.S.L.W. at 4888.

The Court also upheld the search of petitioner’s person

as incident to his formal arrest. It specifically did not find

significant the fact that the search preceded the arrest.

Rawlings is obviously not squarely on point with this

case. However, its similarities make it much more analogous

than Payton.

The first of the similarities is the fact that the petitioner |

in Rawlings was detained pending the arrival of a search

15

warrant. It should be noted that the detention was based

on information gained by the police after entering the house

with a warrant for someone who was not arrested at that

time. In Haynes, the decision to arrest and detain the defen-

dant was made almost simultaneously with an independent

decision by other police officers to secure a search warrant

based on probable cause determined to exist before police

officers ever talked with Haynes or entered his room. The

propriety of the police action in Haynes is even greater than

that in Rawlings because Haynes was immediately placed

under arrest when the officers entered his room. Haynes

bottomed his allegation of violation of the Fourth Amend-

ment on his contention that his detention by police tainted

the search and the evidence seized. Since Haynes was

placed under arrest, he could have been detained instead

at the police station, and it has never been quite clear how

being detained in his own room could be more violative of

his rights than if he had been transported to jail and de-

tained there.

It is clear that, absent the exigent circumstances out-

lined in Point I(a) of this petition, Haynes’ arrest would

have been illegal under Payton. This issue is further con-

fused by the fact that the majority opinion in Haynes did

not clearly hold that the circumstances surrounding Haynes’

arrest were not sufficiently exigent.

Even if the arrest of Haynes or the “illegal intrusion”

found by the Arkansas Court did not withstand Fourth

Amendment scrutiny, however, Rawlings would still allow

the admissibility of the seized evidence. This is especially

true since the police in Haynes had a valid warrant to

search the premises, an even stronger justification for the

search of his motel room than the (apparently erroneous)

16

belief of the police in Rawlings that the warrant to search

Marquess’ house also justified their search of the petition-

er’s person and another occupant’s purse.

The particular language of Rawlings which supports by

analogy the State’s position here is this:

The officers who detained petitioner and his

companions uniformly testified that they took

those measures to avoid the asportation or

destruction of the marihuana they thought was

present in the house and that they believed

that a warrant authorizing them to search the

house would also authorize them to search the

five occupants of the house. While the legal-

ity of temporarily detaining a person at the

scene of suspected drug activity to secure a

warrant may be an open question, and while

the officer’s belief about the scope of the war-

rant they obtained may well have been

erroneous under our recent decision in Ybarra

v. Illinois, —— U.S. ——, 100 S.Ct. 338, 62

L.Ed. 2d 238 (1979), the conduct of the police

here does not rise to the level of conscious or

flagrant misconduct requiring prophylactic

exclusion of petitioner’s statements. Rawlings,

48 U.S.L.W. at 4888 (footnote omitted).

If the statements made during such an arguably illegal

detention without arrest are not tainted by that detention,

it is hard to imagine how evidence seized only after the

execution of a valid search warrant could be tainted by

Haynes’ detention, whether he was under arrest or not.

Even more supportive of the State’s position here, how-

17

ever, is the admissibility of the evidence seized from the

person of the petitioner in Rawlings. That search was only

arguably under color of a warrant to search a residence not

belonging to the petitioner. If evidence seized in that

manner was not tainted either by the officers’ misunder-

standing of the scope of their warrant or by the illegal

detention, it is difficult to understand how the evidence

seized from Haynes’ motel room could have been tainted

by the detention alone.

The petitioner in Rawlings was only an unsuspecting

bystander wholly unrelated to the investigation which re-

sulted in his arrest. The serendipitous events leading to

his arrest netted the police an additional suspect notwith-

standing their circumlocutory methods of establishing

probable cause to search and arrest him.

Haynes, on the other hand, was the actual suspect at

whom an orderly police investigation was aimed. Surveil-

lance and information received from reliable informants,

when coupled with the strictly controlled buy, enabled the

police in Haynes to determine before they acted that

probable cause existed to arrest Haynes and to search his

room.

This Court seemed to find a great deal of significance

in the apparent good faith of the officers in Rawlings.

Although the good faith of the officers there remains un-

questioned, it was not as clearly demonstrated as that of

the police officers in Haynes, who exercised restraint and

refused to act at all until a determination of probable cause

had been reasonably made. The police officers involved in

the Haynes investigation exhibited a significantly higher

degree of awareness of and respect for that defendant’s

Fourth Amendment rights than did those in Rawlings.

18

There was certainly no “conscious or flagrant misconduct

requiring prophylactic exclusion” of the evidence seized.

If the basic purpose of the exclusionary rule is to deter

illegal police action, it is hard to believe that the rule is

aimed at such reasoned and restrained police actions as

those taken by the officers in Haynes. If it is, however, the

police will be severely hampered in their efforts to control

traffic in illegal narcotics and dangerous drugs. Control or

elimination of that traffic is obviously considered to be in

the best interest of the public. There is a delicate balance

between the interest of the public in the control of drug

traffic and its interest in deterrence of Fourth Amendment

violations. Whatever deterrent value there might be in

excluding the evidence seized in Haynes seems far out-

weighed by the value of preventing the further distribution

of LSD. This is especially true when the police made every

reasonable effort to comply with Fourth Amendment

requirements.

19

CONCLUSION

The Arkansas Supreme Court held in Haynes v. State,

269 Ark. Adv. Sh. 506 (1980) that this Court’s recent de-

cision in Payton v. New York, —— U.S. ——, 100 S.Ct. 1371,

63 L.Ed. 2d 639 (1980)controlling in that case. Because the

facts of Haynes are not analogous to those of Payton, the

Arkansas Court incorrectly interpreted the reasoning and

erroneously applied the holding of Payton.

Rule 17.1(c) of the Rules of the Supreme Court of the

United States states that one of the considerations of this

Court in determining whether to grant a petition for a writ

of certiorari is whether a state court has decided an im-

portant question of federal law which has not been, but

should be, settled by this Court, or has decided a federal

question in a way in conflict with applicable decisions of

this Court.

The Arkansas Supreme Court’s opinion in Haynes is in

conflict with both Payton and this Court’s more recent de-

cision in Rawlings v. Kentucky, 48 U.S.L.W. 4885 (U.S.

June 25, 1980) (No. 79-5146). It is also in conflict with

earlier cases in which this Court defined the “exigent cir-

cumstances” which justify warrantless arrest. See, e.g.,

United States v. Jeffers, 342 U.S. 48 (1951). It is still further

in conflict with cases in which this Court has upheld the

constitutionality of searches made pursuant to valid war-

rants. See, e.g., Warden v. Hayden, 387 U.S. 294 (1967).

By impliedly finding that no exigent circumstances

existed in Haynes and applying Payton, the Arkansas Court

also decided that the circumstances which existed in

Haynes are not the “exigent circumstances” this Court held

could be the basis for an exception to the Payton rule. A

20

definition and interpretation of that term as it applies

specifically in Payton is an important question of federal

law which has not been, out should be, settled by this

Court. The question specifically presented is whether the

actions of the police in Haynes constitute an illegal arrest

or detention under Payton.

The Arkansas Court also held that the initial intrusion

into Haynes’ motel room was tantamount to the instituting’

of a search and that any evidence seized thereafter (even

apparently under color of a valid search warrant) should

be excluded under Payton. While this holding was also

based on a state rule of criminal procedure, the Arkansas

Court’s reliance on Payton erroneously interprets it to re-

quire that the evidence be excluded under that case, rather

than solely under the state procedural rule. Assuming that

the arrest, detention, or “intrusion” in Haynes was illegal,

which the State does not concede, another important ques-

tion of federal law which should be decided by this Court

is whether the execution of a valid search warrant removes

any taint of an arrest illegal under Payton and thereby

renders the evidence admissible.

In addition, this Court acknowledged in Rawlings that

the question of legality of a lengthy detention by police

while awaiting the arrival of a search warrant was still an

open question. 48 U.S.L.W. at 4888. This is an additional

question of federal law which is squarely presented in this

case and should be decided by this Court.

The Arkansas Supreme Court’s opinion in Haynes is in

conflict with no less than four of this Court’s previous

opinions. The Arkansas Court also decided erroneously at

least three important questions of federal law which this

Court has never squarely addressed and which should be

21

decided. There are, therefore, seven reasons why this Court

should grant this petition for writ of certiorari under the

provisions of Rule 17.1(c) and vacate the reversal of ©

Haynes’ conviction.

The facts of Haynes are obviously more nearly like

those of Rawlings than those of Payton. The Arkansas Court

apparently did not consider Rawlings in rendering the

Haynes opinion, as Rawlings is neither cited nor discussed

in that opinion. If nothing else, this Court should grant this

petition for writ of certiorari and remand Haynes for re-

consideration in light of Rawlings.

Respectfully submitted,

STEVE CLARK

Attorney General of Arkansas

Victra L. FEWELL

Assistant Attorney General

Justice Building

Little Rock, Arkansas 72201

(501) 371-2007

Attorneys for Petitioner

A-1

Appendix "A"

William Thomas HAYNES v. STATE of Arkansas

CR 80-62

Opinion Delivered July 7, 1980

Appeal from Boone Circuit Court, Robert W. McCorkin-

dale II, Judge; reversed and remanded.

E. Alvin Schay, State Appointed Defender, by: John

Jones, Deputy, for appellant.

Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst.

Atty. Gen., for appellee.

JoHN I. PurtLe, Justice. Appellant was convicted of

possession of marijuana, possession of LSD with intent to

deliver, and delivery of LSD. He was fined $1,000 and

sentenced to one year in jail on the marijuana charge and

was fined $15,000 and sentenced to the Department of

Correction for 20 years on each of the other two charges.

The jail time merged with the Department of Correction

sentences which were to run consecutively.

On appeal appellant urges three points for reversal.

(1) The court failed to grant appellant’s motion to suppress

certain evidence. (2) The sentence resulted from passion

and prejudice and was cruel and unusual. (3) The trial

court failed to sentence appellant pursuant to the Youthful

Offender’s Act. We agree with appellant’s first contention

but disagree with the second and third arguments.

Appellant lived with his father in room 114 of the

Apple Valley Inn in Harrison, Arkansas, at the time the

events considered here occurred. Other persons occupied

room 116. The police became suspicious that drugs were

A-2

being distributed from the motel and began an investiga-

tion. Apparently, room 116 received most of the visitor

traffic, but there was some testimony that several people

were in and around rooms 115 and 114, also.

About 8:00 p.m. on April 23, 1978, the officers decided

to make a controlled purchase through a reliable informant..

The officers moved into an observation post from which

they observed five people known to them, plus several

more unknown to them, in and around room 116. Detective

Post stated:

Well, they were all over, and, there were cars there and

I can’t remember what kinds of cars they were and all

these individuals were outside and going inside room

116, back and forth and standing outside talking.

Sergeant Lucas testified that he observed the informant

arrive on the scene at approximately 11:00 p.m. and that he

saw the appellant emerge from.room 114 and strike up a

conversation with the informant in the parking lot. Shortly

thereafter, the informant and the appellant entered room

116 where they stayed a few minutes, and the informant

left. The informant later reported that he had been success-

ful in buying drugs from the appellant. Although the

record is silent, it is apparent that the purchase was com-

pletei in room 116. Lucas further testified that the people

he observed were in room 115 or 116 but not in room 114.

All of the people he saw arriving and departing were from

room 116. He also testified that after the informant and

appellant left room 116, the appellant returned to room 114

where he resided with his father.

The officers then decided it was time to secure the area;

and, on command, they charged the motel and kicked down

A-3

the door of rooms 115 and 116. Room 115 was vacant and

only two people were in room 116. After discovering

appellant was in neither room, they proceeded to room 114

where they entered: without permission and without a

warrant. At this time, other officers were attempting to

obtain a search warrant, however, it took approximately

three and a half hours for the warrant to arrive. In the

meantime, the officers moved appellant’s father out of his

own room and placed him. in room 115 until the search

warrant arrived. Appellant and at least one officer stayed

inside room 114 for approximately three and a half hours.

The officers admitted they did not have permission to enter

room 114 as they were not there under friendly circum-

stances.

The evidence is in considerable dispute about what

occurred while the officer remained in room 114 waiting

for the search warrant, and it is uncertain when or if the

appellant was arrested. Officer Post stated:

I did not tell them they were under arrest, but I did

advise the defendant of his rights. This was when I

walked into room 114. I asked Officer Hutchinson if the

defendant had said anything, and he said he had not.

The officer testified that after a considerable amount

of discussion the appellant finally stated that the only drugs

he had were in a dresser drawer and that appellant went to

the dresser drawer, opened it, and got a container with the

' marijuana in it. The officer opened the canister, looked in

and saw the marijuana, and told appellant to replace it in

the drawer. After the search warrant arrived, about 3:00

a.m. the police took possession of the marijuana again, and,

they also discovered LSD with a market value of $58.

A-4

The crucial question to be considered by’ the court is

whether the evidence seized should have been suppressed..

Arkansas Rules of Criminal Procedure, Rule 10.1(a),

states:

“Search” means any intrusion other than an arrest, by.

an officer under color of authority, upon an individual’s

‘person, property, or privacy, for the purpose of seizing

individuals or things or obtaining information by in-

spection or surveillance, if such intrusion, in the

~ absence of legal authority or sufficient consent, would

be a civil wrong, criminal offense, or violation of the

individual’s rights under the Constitution of the United

States or this state.

It seems quite clear that there was an intrusion into

appellant’s place of abode at the time of this “seizure.” Since

an intrusion without legal authority is a violation of one’s

individual rights under the Constitutions of the United

States and the State of Arkansas, this visit amounted to an

illegal intrusion or search. Rule 10.1(a) is nothing more

than an explanation of a meaning of the word “search”. The

officers obviously were acting under color of authority and

were on the appellant’s property for the purpose of seizing

individuals or things. There is no question there was no

- consent to this intrusion.

Arkansas Rules of Criminal Procedure, Rule 14.3,

states:

An officer has reasonable cause to believe that premises

or a vehicle contain: 7

(a) individuals in imminent danger of death or serious

bodily harm; or |

A-5

(b) things imminently likely to burn, explode, or

otherwise cause death, serious bodily harm, or substan-

tial destruction of property; or

(c) things subject to seizure which will cause or be

used to cause death or serious bodily harm if their

seizure is delayed; ae

‘may, without a search warrant, enter and search such

premises and vehicles, and the persons: therein, to the

- ext@gt necessary for the prevention of such death,

bodily harm or destruction.

It is quite clear that this was not an emergency search

as defined by the above-quoted rule. We have always con-

strued the Fourth Amendment to prohibit entry into one’s

home, without a warrant, for any reason; except, exigent

-» circumstances have been determined to allow a warrantless

intrusion. Absent exigent circumstances such an intrusion

is not permitted. Payton v. New York, —— U.S. ——, 100

S.Ct. 1371 (1980). We do not believe any provision of the

constitution permits officers without a warrant to break

down doors, to enter the premises of an individual, and to

detain him for several hours while waiting for a search

warrant. Using an old cliche, a man’s home is his castle;

and, it should be free from intrusion by outsiders, including

the government and its officers. The United States

Supreme Court has confirmed the statement that illegal

entry into a person’s home is the chief evil guarded against

by the Fourth Amendment. United States v. United States

District Court, 407 U.S. 297 (1972); McDonald v. United

States, 335 U.S. 451 (1948).

In Riddick v. New York, —— U.S. ——, 100 S.Ct. 1371

(1980), which is a companion case to Payton v. New York,

A-6

supra, it was held that when the police entered a residence

without a warrant and seized evidence, the evidence thus

obtained was inadmissible. In both Payton and Riddick, the

trial court and the appellate court refused to suppress the

evidence obtained in these two cases. In Payton the police

knocked on his door; and, when there was no response, they

knocked in the door and seized a spent cartridge which was

in plain view. In Riddick’s case the police knocked on his

door; and, when his young son opened the door, the police

saw Riddick sitting in bed, entered his residence, and

arrested him. Before permitting him to dress, they opened

a chest of drawers and found narcotics and related para-

phernalia which resulted in Riddick’s arrest and aided in

his conviction. Both of these cases were reversed by the

United States Supreme Court. It was held that the Fourth

Amendment, made applicable to the states by the Four-

teenth Amendment, prohibits police from making a war-

rantless and nonconsensual entry into a suspect’s. home in

order to make a routine felony arrest.

The opinion of the Court in Payton v. New York, supra,

and Riddick v. New York, supra, is represented by the fol-

lowing statement:

_ It is a “basic principle of Fourth Amendment law” that

searches and seizures inside a home without a warrant

are presumptively unreasonable. Yet it is also well-

settled that objects such as weapons or contraband

found in a public place may be seized by the police

‘ without a warrant. The seizure of property in plain

view involves no invasion of privacy and is presump-

tively reasonable, assuming that there is probable cause

to associate the property with criminal activity. The

distinction between a warrantless seizure in an open

A-7

area and such a seizure on private premises was plainly

stated in G. M. Leasing Corp. v. United States, 429 U.S.

338, 354, 50 L.Ed 2d 530, 97 S.Ct. 619: * * *

It is obvious that this case is controlling on the matter be-

fore us at this time.

We know of no stahubiny: or other right which enables

the officers to take the action which was described by

Officer Hutchinson when he stated:.

I told him that he was under arrest for the sale of a

controlled substance and advised him of his constitu-

tional rights, per Miranda, and seized the room until

the search warrant could arrive.

’ Certainly, seizing the room is as much of an invasion

of privacy as searching the room. Admittedly, there was no

search warrant; therefore, the search and the seizure prior

to the receipt of the warrant were not authorized.

We are unable to say from the record that the sentence

was a result of passion or prejudice or that it was a clear

abuse of the trial court’s discretion. Also, we point out that

the Youthful Offender’s Act, Ark. Stat. Ann. §43-2339

(Repl. 1977), is discretionary, and we find no abuse of that

discretion.

Reversed and remanded.

FOGLEMAN, C.J ., GEoRGE RosE SMITH and Stroup, J.J.,

dissent.

JOHN A. FoGLeMAN, Chief Justice, dissenting in part. I

could accept a holding that the seizure of the marijuana in

this case was the result of an unreasonable search and

seizure, but I do not agree that the seizure of the LSD was

A-8

.@ result of an unreasonable search. It was the fruit of a

search pursuant to a search warrant which the officers

were unable to produce until 3 1/2 hours after they knew

there was a probable cause for a search of the motel room

in which it was found. The officers who remained at the

scene restrained themselves admirably except for the

questionable episode relating to the marijuana. Perhaps the

circumstances were not so exigent as to permit a search

without a warrant, but Haynes did not have a constitutional

right to flush his remaining inventory of LSD down the

commode. Yet this is the unarticulated effect of the ma-

jority opinion. That is the only way that it can be said that

the successful search pursuant to a proper warrant was the

fruit of an unlawful intrusion.

In viewing this matter, it seems to me that the majority,

in making its independent determination of the reasonable-

ness of the search, has given no weight whatever to the

finding of the trial judge that the search was reasonable.

The holding in Payton v. New York & Riddick v. New York,

— US. ——, 100 S.Ct. ——, 63 L.Ed. 2d 639 (1980), relied

upon by the majority is strictly limited to arrests made in

the absence of exigent circumstances. Throughout all the

spate of its decisions during the past quarter of a century

dealing with the Fourth Amendment warrant requirements

in the light of what has been called the amorphous word,

“reasonableness”, the United States Supreme Court has

consistently recognized an exception to the warrant require-

ment in exigent circumstances, both in cases where a search

was sustained as reasonable and where suppression was

required because a warrantless search or seizure was un-

reasonable. See, e.g., Johnson v. United States, 333 U.S. 10,

68 S.Ct. 367, 92 L.Ed. 436 (1948); McDonald v. United

A-9

States, 335 U.S. 451 69 S.Ct. 191, 93 L.Ed. 153 (1948); United

States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951);

Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed. 2d

782 (1967); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,

19 L.Ed. 2d 576 (1967); Chimel v. California, 395 U.S. 752,

89 S.Ct. 2034, 23 L.Ed. 2d 685 (1969); Chambers v. Maroney,

399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d 419 (1970); Coolidge

v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed. 564

(1971); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.

Ed. 2d 290 (1978). In Payton, the court specifically recog-

nized that a different result might have been reached had

the state found exigent circumstances, which arguably

existed. In Riddick, there was no suggestion of exigent cir-

cumstances. In Warden, it was said that neither entry nor

search is invalid where the exigencies of the situation make

the course of action taken by the police imperative. The fact

that the contents of the place to be searched might never be

found again is a pertinent consideration in determining the

reasonableness of the police action. See Chambers v. Ma-

roney, supra. It is universally recognized that the danger of

destruction of evidence, particularly contraband, is one of

the most important factors in considering whether the

circumstances were sufficiently exigent that action without

a warrant is reasonable. See United States v. Santana, 427

U.S. 38, 96 S.Ct. 2406, 49 L.Ed. 2d 300 (1976) Cupp v. Mur-

phy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed. 2d 900 (1973), and

cases above cited.

There was evidence of exigent circumstances in this

case. There was probable cause for the arrest of Haynes.

The officers who arranged for the informant to purchase

the controlled substance from Haynes proceeded immedi-

ately to obtain a search warrant and informed the state

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trooper, Hutchinson, a specialist in the enforcement of laws

governing narcotics. Hutchinson said that he observed that

a great many people were involved and many were leaving

and he judged that the officers were running the serious

risk of losing other evidence and having dangerous drugs

get out on the street, so he decided that he and the officers

still present should “secure” the area. He said that after he

had gone to room 116 and Sgt. Lucas to room 115, he pro-

ceeded to room 114, where he found the door ajar, knocked

on it, identified himself as a police officer, and said that he

wanted to speak to Tommy Haynes and that he was there

for a drug investigation. Hutchinson said that, after hearing

a voice saying, “I am Tommy Haynes. What do you want?”,

he entered the room, identified himself, and asked if the

younger of two persons there was Tommy Haynes and,

upon receiving an affirmative response, confirmed the

identification by asking for the person’s driver’s license.

Haynes testified that when he identified himself, Hutchin-

son asked him to step outside. He said that Hutchinson

stated that he was conducting an investigation and had

come to secure the area and that he (Haynes) responded,

“Okay, go ahead.” According to Hutchinson, he placed

Haynes under arrest for sale of a controlled substance and

advised him of his rights a few minutes later when Officer

Post arrived. Hutchinson said his basic concern was put-

ting the individuals under arrest and preventing any

further disposition of the evidence.

In Freeman v. State, 258 Ark. 617, 527 SW2d 909, we

held that the state had failed to show exigent circumstances

to justify the warrantless seizure of an automobile. We said

that there was no evidence that there was any danger that

people in an automobile, from which the accused was taken

A-l1l

when arrested, might remove the vehicle from the premises

before a warrant could be issued, but that if that danger did

exist, no reason appeared why two officers, other than

those who made the arrest but were present when the

arrest was made, could not have maintained a guard suf-

ficient to prevent the removal of this evidence or why

additional officers could not have been summoned to lend

assistance in this respect. This was a clear recognition that

circumstances that were not exigent might become so by

subsequent developments.

In a narcotics case, it has been recognized that once the

accused, who had recently made a sale to one making a

“controlled buy” arranged by an undercover officer, saw the

police, there was a realistic expectation that a delay would

only result in destruction of the evidence. United States v.

Santana, supra. There a warrantless arrest and search were

found reasonable. In Michigan v. Tyler, 436 U.S. 499, 98

S.Ct. 1942, 56 L.Ed. 2d 486 (1978), the court pointed out

that its decisions had recognized that a warrantless entry

by criminal law enforcement officers may be legal when

there is compelling need for official action and no time to

secure a warrant. The inquiry is a dual one — whether the

actions of the officer were justified in their inception and

whether it was reasonably related in scope to the circum-

stances which justified the interference in the first place.

Cupp v. Murphy, supra. A warrantless “search” must be

strictly circumscribed by the exigencies which justify the

intrusion. Mincey v. Arizona, supra.

In this case the evidence clearly showed that there

were exigent circumstances to support the action of

Hutchinson. A rather general exodus from the motel

premises among the frequenters of room 116 and its

A-12

environs commenced after the controlled buy. It became

apparent to Hutchinson, whose expertise as a narcotics

officer is not to be ignored, that there was a reasonable

probability that Haynes would join the exodus, with or

without his remaining inventory of LSD. If he took it, it

would undoubtedly surface on the street. If he did not,

there was a strong likelihood that it would have “gone

down the drain.” There certainly was a reasonable expecta-

tion that evidence would be destroyed, or that, in any

event, it would never be found if the arrival of a search

warrant was awaited. It was certainly reasonable to believe

that there was a compelling need for official action in the

form of an arrest and “securing the area” of the intended

search. There was certainly a basis for finding that the

actions of the officer were justified in their inception.

Hutchinson carefully limited the intrusion by not actually

conducting a search for evidence (contraband) until the

search warrant arrived. There was an evidentiary basis for

a finding that he did not extend his intrusion beyond the

scope reasonably related to the initial interference.

In its totally independent determination of the

reasonableness of the officer’s action, the majority has

ignored a basic factor of that review. We should give

respectful consideration to the findings of the trial court

and considerable weight in the resolution of evidentiary

conflicts. Harris v. State, 244 Ark. 314, 425 SW 2d 293; State

v. Osborn, 263 Ark. 554, 566 SW2d 139. We should accord

the trial court’s findings such weight that we will not over-

turn them unless they are clearly against the preponderance

of the evidence. Degler v. State, 257 Ark. 388, 517 SW2d 515;

State v. Osborn, supra. I respectfully submit that the ma-

jority has given no consideration to the findings of the trial

A-13

court. I do not see how it can be said that the trial court’s

finding was clearly against the preponderance of the evi-

dence. This decision will do nothing to counter the growing

dissatisfaction with the exclusionary rule.

I would affirm the judgment.

I am authorized to state that Mr. Justice GrorcE Rose

SMITH and Mr. Justice Stroup join in this opinion.