Appendix — Vinston v. Arkansas

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APPENDIX “A”

IN THE SUPREME COURT OF ARKANSAS

No. CR 81-72

LOUIS HENRY VIS o.oIùU ss Appellant

Vv.

STATE OF ARKANSAS s Appellee

December 21, 1981

Defendant was convicted in the Pulaski County Circuit

Court, Fifth Division, Lowber Hendricks, J., of armed rob-

bery, and he appealed. The Supreme Court, Hickman, J.,

held that: (1) where warrant had been obtained for de-

fendant’s arrest and thereafter detective arrested defendant

and seeing his vehicle at garage decided it should be seized

to prevent removal or destruction of any evidence or con-

traband, seizure of automobile was not unreasonable or in

violation of Fourth Amendment; (2) where both victims

testified they got good look at robbers and identification was

made less than 24 hours after crime was committed, trial

court did not err in admitting identification testimony,

notwithstanding claim that victims were repeatedly taken

through lineup and suggestions were made by police; and

(3) evidence established sufficient chain of custody.

Affirmed.

Adkisson, C.J., dissented with opinion in which Purtle,

J., joined.

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1. SEARCHES AND SEIZURES

State has burden of justifying warrantless seizure of

vehicle; however, automobile does not enjoy same constitu-

tional protection that a home does because of its mobility

and because one does not have same expectation of privacy

in a vehicle as one would in a house. U.S.C.A. Const. Amend.

4.

2. SEARCHES AND SEIZURES

Seizure of vehicle is justified when confederates or

others might remove vehicle. U.S.C.A. Const. Amend. 4.

3. SEARCHES AND SEIZURES

Where warrant had been obtained for defendant's

arrest and thereafter detective arrested defendant and

seeing his vehicle at garage decided it should be seized to

prevent removal or destruction of any evidence or con-

traband, seizure of automobile was not unreasonable or in

violation of Fourth Amendment. U.S.C.A. Const. Amend. 4.

4. CRIMINAL LAW

Whether identification is tainted depends upon oppor-

tunity to observe the criminal, accuracy of victim's descrip-

tion, amount of certainty of victim at time of confrontation

and length of time between crime and identification.

5. CRIMINAL LAW

Where both victims testified they got good look at rob-

bers and identification was made less than 24 hours after

crime was committed, trial court did not err in admitting

identification testimony, notwithstanding claim that vic-

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tims were repeetedly taken through lineup and suggestions

were made by police.

6. SEARCHES AND SEIZURES

Valid search warrant may issue based upon hearsay

information as long as there is substantial basis from credit-

ing hearsay.

7. SEARCHES AND SEIZURES

Where search warrant for vehicle was signed by one

of detectives and was based on positive identification of

defendant by robbery victims, search warrant was valid,

notwithstanding claim that it was deficient because it was

based on hearsay.

8. CRIMINAL LAW

In prosecution for robbery evidence that defendant’s

vehicle was towed to fenced lot used by police for storing

such vehicles, that enclosure was locked, and that officer

had to force open trunk because key that was taken from

defendant would not open the trunk established sufficient

chain of custody of items recovered from trunk of vehicle.

McArthur & Lassiter, P.A., Little Rock, for appellant.

Steve Clark, Atty. Gen., by Leslie M. Powell, Asst.

Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Louis Henry Vinston was one of three men suspected

of participating in an armed robbery of Henshaw Jewelry,

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a small shop located in the Park Plaza Shopping Center in

Little Rock, Arkansas. Late in the afternoon of October 30,

1980, two men, one black and one white, armed with pistols,

forced the owners of the store, Mr. and Mrs. Henshaw, into

a back room and proceeded to empty the display cases of

jewelry and steal other valuable property in the store.

During the course of the robbery, a white accomplice enter-

ed the store. It was estimated that the jewelry store was

worth about $30,000 and the scrap gold taken was worth

$36,000. Vinston was convicted of aggravated robbery and

theft and sentenced to fifty years imprisonment for the

robbery and twenty years for the theft. His sentences were

enhanced because of four or more prior convictions.

Vinston’s arguments of error on appeal relate to search

and seizure, his identification, the validity of a search war-

rant, and the chain of custody regarding items taken from

his vehicle. We find no merit to these arguments and affirm

his convictions.

On Thursday afternoon, the 30th of October, 1980,

Ralph Jones, the supervisor of the power plant at the shop-

ping center, noticed suspicious conduct by two white males

and one black male. He had been alerted earlier by a

restaurant owner in the shopping center to be on the look-

out for thieves who were stealing meat from the restaurant.

The three men first drove up in a Buick automobile, parked,

went into the shopping center, came out ten minutes later

and left. Twenty minutes later all three returned in a Ford

LTD automobile being driven by the black man. The three

men got out of the car carrying green plastic bags. One of

the white men returned to the Ford and left. Jones wrote

down the license numbers and a description of both the

Buick and the Ford on a scrap of paper. About the Ford he

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wrote: ELP 871, LTD Four Door, 1977. Jones could not say

which store the men entered.

During this period of time Henshaw’s jewelry store

was robbed. According to the Henshaws the robbers stayed

for about fifteen minutes, none of them had masks on, and

the store was well lit. After the robbery the Henshaws

called the police. The next morning Jones, the plant super-

visor, called the police and gave them & description of the

vehicles that he had seen and related what he had observed.

That same morning at 8:30 a detective took six photographs

of black men to the Henshaws and both of them identified

Vinston as one of the robbers.

The police learned that the Ford LTD automobile de-

scribed by Jones belonged to Vinston. Based on all this

information a warrant was obtained for Vinston’s arrest

and two detectives proceeded to the L & S Garage on

Mabelvale Pike that Vinston owned an interest in. The two

detectives arrested Vinston at the garage at 11:00 am.,

October 31, 1980, and seeing his vehicle decided that it

should be seized to prevent removal or destruction of any

evidence or contraband.’ It was seized and towed to a lot

used by the police for such vehicles. Three days on

Monday, a search warrant was obtained for the Ford auto-

mobile. The trunk contained a shoulder holster, and

numerous watches, rings and bracelets.

The day that Vinston was arrested the Henshaws and

two other witnesses viewed a lineup and the Henshaws

identified Vinston positively as one of the robbers.

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Vinston argues on appeal that the seizure of his vehicle

was unreasonable and was, therefore, in violation of the

Fourth Amendment to the United States Constitution. We

disagree.

[1] The State had the burden of justifying the war-

rantless seizure of the vehicle. Cardwell v. Lewis, 471 U.S.

583, 94 S.Ct. 2464, 41 L.Ed. 2d 325 (1974). However, the

United States Supreme Court has consistently recognized

that an automobile does not enjoy the same constitutional

protection that a home does because of its mobility and

because one does not have the same expectation of privacy

in a vehicle as one would in a house. Carroll v. United

States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925);

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d

419 (1970). This has come to be known as the automobile

exception and its application has many facets. This case

does not fall within the ruie that allows the search of part

of the vehicle that is within the immediate reach or control

of the one arrested. New York v. Belton, —— U.S. ——, 101

S.Ct. 2860, 69 L.Ed. 2d 768 (1981); Chimel v. California, 395

US. 752, 89 S.Ct. 2034, 23 L.Ed. 2d 685 (1969). This is a

case similar to Coolidge v. New Hampshire, 403 U.S. 443, 91

S.Ct. 2022, 29 L.Ed. 2d 564 (1971). In the Coolidge case the

police seized a vehicle in the driveway of a private residence

without a warrant and seizure was held to be unreasonable

because there were no exigent circumstances. In doing so,

however, the court pointed out six circumstances that

affected their decision, six reasons why exigent circum-

stances did not exist: 1. The police had known for some

time of the probable role of the vehicle in the crime; 2.

The defendant was aware that he was a suspect, had been

cooperative and there was no indication he would flee; 3.

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He had already had ample opportunity to destroy any evi-

dence; 4. There was no suggestion that the vehicle was

being used for an illegal purpose, and it was regularly

parked in the driveway of his house; 5. The opportunity

for search was not “fleeting”; and, 6. The objects the police

assumed to be in the car were neither stolen, contraband,

nor dangerous. The counterparts of these six reasons all

exist in this case: 1. The robbery had occurred just the

evening before; 2. Vinston was not contacted until he

was arrested the next day at 11:00 a.m.; he had no reason

to know that he was a suspect or that his car had been

identified as being used in the robbery, so he would have

no reason to destroy any evidence or remove any contra-

band; 3. The vehicle was not in a private driveway but at

a business establishment; 4. There were two other suspects

in the case, both white, who had not been identified or

arrested at the time Vinston was arrested; 5. The police

had good cause to believe that they would only have this

“fleeting” opportunity to seize the vehicle before someone

could remove the evidence or contraband; and, 6. The

police had positive information that the vehicle was used

in the crime and possibly contained evidence or stolen

property.

[2] The seizure of a vehicle is justified when con-

federates or others might remove a vehicle. U.S. v. 1972

Chevrolet Nova, 560 F.2d 464 (Ist Cir. 1977); See W. Ringel,

Searches and Seizures, Arrests and Confessions, 511.3

(1980).

[3] In Freeman v. State, 258 Ark. 617, 527 S. W. ad 909

(1975), we held the seizure of the accused’s automobile to

be unreasonable. But Freeman is distinguishable for several

reasons: The vehicle was located on private property at a

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residence; Freeman was arrested two blocks away from his

vehicle; and, there had been no positive identification of

the vehicle seized as being the one used in the crime.

Clearly, exigent circumstances existed warranting the

seizure of Vinston’s vehicle.

[4, 5] Vinston's argument that hie identification at

the lineup was too suggestive is also meritless. Both Hen-

shaws pointe out Vinston from six photographs in the

early morning after the robbery. It is argued that the

Henshaws, Jones, the plant supervisor, and Cathy Meechan,

a clerk at the store next door to the jewelry store, were

repeatedly taken through the lineup and suggestions were

made by the police. This argument is based primarily on

the testimony of a lawyer who represented one of the white

suspects, Mr. Storey, who co-owned the garage with

Vinston. Evidently the police were not all that suggestive

because neither of the two white suspects was identified.

Only Vinston was identified and only the Henshaws identi-

fied him. Mr. Henshaw said he only viewed che lineup of

the black men once. Ars. Henshaw said she viewed it twice.

Both denied that any suggestions were made to them and

the two detectives verified their testimony. On appeal we

review the totality of the circumstances to see if the trial

court’s decision was clearly erroneous. Beed v. State, 271

Ark. 526, 609 S.W.2d 898 (1980). Whether an identification

is tainted depends upon several factors: The opportunity

to observe the criminal, the accuracy of the victim’s de-

scription, the amount of certainty of the victim at the time

of the confrontation and the length of time between the

crime and identification. Washington v. State, 273 Ark. 482,

621 S.W.2d 216 (1981). Both Henshaws testified that they

got a goud look at the robbers. In this case the identification

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was made less than twenty-four hours after the crime was

committed. The trial court’s decision admitting the identifi-

cation evidence was not clearly erroneous.

[6,7] The police obtained a search warrant for

Vinston’s vehicle on the Monday following the robbery.

The warrant was signed by one of the detectives and it was

based on the positive identification of Vinston by the Hen-

shaws and the information supplied by Mr. Jones. It is

argued that the warrant was deficient because it was based

on hearsay and the warrant did not come within the test of

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed 2d 723

(1964). Aguilar dealt with an unidentified police informant

and does not control. In this case the face of the warrant

stated Mr. Jones’ name and address, that he had observed

Vinston’s vehicle at the place of the robbery, and that

Vinston had been arrested for the robbery. A valid warrant

may issue based upon hearsay information as long as there

is substantial basis for crediting the hearsay. Rowland v.

State, 262 Ark. 783, 561 S.W.2d 304 (1978); Flaherty v.

State, 255 Ark. 187, 500 S.W.2d 87 (1973), cert. denied, 415

US. 995, 94 S.Ct. 1599, 39 L.Ed. 2d 893 (1974). The search

warrant was based on solid information.

[8] A rather weak argument is made that the State

did not prove the chain of custody of the items recovered

from the trunk of the vehicle. The unrefuted testimony of

the officer was that the vehicle was towed to a fenced in

lot used by the police for storing such vehicles. The enclo-

sure was locked, and at night there were watch dogs

running loose in the enclosure. The officer testified that he

had to force open the trunk because the key that they had

taken from Vinston would not open the trunk. Actually,

Vinston claimed that he gave the officers permission to

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search the vehicle at the time he was arrested and they

refused to do so. He said he told them that the trunk could

be opened by pulling a latch in the glove compartment of

the vehicle. The officers testified that Vinston refused

permission to search the vehicle when he was arrested.

The officer said the trunk was forced because he did not

know that this type of vehicle had a trunk latch in the

glove compartment. The trial court was satisfied the State

had shown a proper chain of custody and error has not

been demonstrated by the appellant.

Affirmed.

ADKISSON, C. J., and PURTLE, J., dissent.

ADKISSON, Chiei Justice, dissenting.

The police arrested appellant and seized his automo-

bile. There was no testimony bearing on the appellant’s

location relevant to the car at the time of the arrest and

seizure. We must, therefore, assume that the search

incident to arrest doctrine has no applicability to this case.

This case is governed by Coolidge v. New Hampshire,

403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed. 2d 564 (1971), which

held that the police must obtain - warrant when they in-

tend to seize an object outside the scope of a valid search

incident to arrest. Warrantless searches are presumed to

be unreasonable.

The State attempted to justify the seizure by proof of

exigent circumstances recognized in Coolidge as sufficient

to dispense with the warrant requirement. Although the

majority finds this proof sufficient, it was, in fact, not suf-

ficient because the determining factors making a warrant

necessary in Coolidge are also present in this case. They

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are: advance police knowledge of the existence and loca-

tion of the evidence, police intention to seize it, and the

ample opportunity for obtaining a warrant.”

Here the police knew in advance that they wanted to

seize the car. They knew it was used in the robbery and

that it was registered in the name of the appellant. The

police had ample opportunity to obtain a search warrant for

the car at the same time they requested the arrest, warrant

for the appellant.

I am hereby authorized to state that PURTLE, J., joins

me in this dissent.

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APPENDIX “B”

STATES EXHIBIT NO. “1”

(RIGHTS FORM)

APPENDED TO ORIGINAL TRANSCRIPT

LINEUP RIGHTS

DATE 10-31-80

TIME 1158 HRS.

LOUIS HENRY VINSTON, DOB NO. 4-6-50

You are being asked to participate in a lineup with

several other people. Persons who are witnesses to crimes

in which you are a suspect will view this lineup for a possi-

ble identification. You do not have a right to refuse to

stand in this lineup.

You have the right to have an attorney of your choosing

present during this proceedings or to confer with an attor-

ney prior to this lineup. If you cannot afford an attorney,

one will be appointed by the court to represent you.

However you may waive your rights to have an attor-

ney present.

WAIVER

I have read this statement of my rights and understand

them. I am willing to participate in a lineup without my

attorney being present.

Called his attorney Kenneth Coffelt at 1205 hrs.

SIGNED:

WITNESSES: Larry Dunnington

J. D. Martin

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APPENDIX c

STATE’S EXHIBIT NO. “9”

IN THE MUNICIPAL COURT OF LITTLE ROCK, ARKANSAS

80-61912

AFFIDAVIT FOR SEARCH AND SEIZURE WARRANT

The undersigned, being duly sworn, deposes and says

as follows: That he, the undersigned, has reasonable cause

to believe and upon reasonable cause does believe that a

particular automobile located at the storage lot used by the

Little Rock Police Department, Penny’s Wrecker Service,

6404 Geyer Springs Road, Little Rock, Arkansas and de-

scribed as follows: a 1977 Ford, four door, white over gold

LTD, Arkansas License Number ELP 871, VIN Number

7U645111686, has concealed therein fruits of the crime of

Aggravated Robbery and Theft of Property of Henshaw

Jewelry Store located at Park Plaza Shopping Center,

University and West Markham Streets, on October 30,

1980, at approximately 5:40 p.m.

Said fruits of the crime include two hundred dollars

($200) in currency from the safe and forty dollars ($40)

in currency from Mr. Henshaw, one Walther P-38 Auto

Pistol, one Ansonia Antique Clock, one Howard Miller

Chime Clock, one Ist Federal 30 month Stock certificate,

eighteen (18) silver dollars, and approximately thirty

thousand dollars ($30,000) in assorted diamonds and

jewels, tending to demonstrate that an offense wa com-

mitted and thai certain persons committed it.

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FACTS CONSTITUTING REASONABLE CAUSE:

1. The above described automobile belongs to Louis

Vinston of 3325 W. 9th Street, Little Rock, Arkansas, a

black male, thirty (30) years old, date of birth 4-6-50. This

individual has been identified as a person involved in said

aggravated robbery and theft of property and has been

arrested and charged with said crime by the Little Rock

Police Department.

2. That on October 30, 1980, the date of the commis-

sion of the said crime, at approximately 5:35 p.m. the above

described automobile, registered to Louis Vinston, the

above mentioned individual, was observed by Ralph Jones,

6300 B Street, Little Rock, Arkansas, an employee of the

Park Plaza Shopping Center, at the power plant parking

area for approximately five (5) to ten (10) minutes.

3. That the above mentioned Louis Vinston was

arrested on October 31, 1980, and the above described auto-

mobile was impounded by members of the Little Rock

Police Department at Penny’s Wrecker Service, 6404 Geyer

Springs Road, Little Rock, Arkansas at approximately the

same time on October 31, 1980, and has remained in cus-

tody, locked and secured at the above location over the

weekend until members of the Little Rock Police Depart-

ment could obtain a search and seizure warrant.

THEREFORE, the undersigned prays that a search and

seizure warrant issue for the above described automobile

at Penny’s Wrecker Service, 6404 Geyer Springs Road,

Little Rock, Arkansas.

/s/ Larry Dunnington

L. Dunnington, Affiant

Detective, Little Rock Police

Dept.

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SUBSCRIBED AND SWORN to before me at 600

Markham St. on this 3rd day of November, 1980. I find that

there is sufficient reasonable cause to issue a search and

seizure warrant for the property described in the list above.

/s/ William R. Butler

Judge

„

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APPENDIX “D”

STATE’S EXHIBIT NO. “10”

IN THE MUNICIPAL COURT OF LITTLE ROCK, ARKANSAS

80-61912

SEARCH AND SEIZURE WARRANT

TO ANY SHERIFF, CONSTABLE OR POLICEMAN IN

THE STATE OF ARKANSAS:

On Affidavit having been made before me by Det. Larry

Dunnington, of the Little Rock Police Department, that he

has reason to believe that in a 1977 Ford, 4 door, white over

gold LTD automobile, Arkansas License Number ELP 871,

VIN NO. 70645111686, which is located at Penny’s Wrecker

Service, 6404 Geyer Springs Road, Little Rock, Arkansas,

there is now being concealed certain evidence of the crimes

of aggravated robbery and theft of property, said property

being described as follows: two hundred and forty ($240)

in currency, one Walther P-38 auto Pistol, one Ansonia

Antique Clock, one Howard Miller Chime Clock, one First

Federal Savings & Loan thirty (30) month stock certificate,

eighteen (18) silver dollars and approximately thirty

thousand dollars ($30,000) in assorted diamonds and

jewels, tending to demonstrate that the offense of aggra-

vated robbery and theft of property were committed and

that certain persons committed them, and as I am satisfied

that there is reasonable cause to believe that the above

described property and evidence is concealed in the above

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described premises, and that on the foregoing grounds

reasonable cause for issuance of the Search Warrant exists.

YOU ARE HEREBY COMMANDED AND DIRECTED

to search the 1977 Ford, 4 door, white over gold, Arkansas

License Number EL 871, VIN NO. 70645111686, LTD auto-

mobile located at Penny’s Wrecker Service, 6404 Geyer

Springs Road, Little Rock, Arkansas, and to seize the

above described evidence and property and to leave a copy

of this warrant with the person in apparent control of said

premises, or affix a copy of said warrant thereto, and to

prepare a written inventory of the property seized and

return this warrant and a copy of said inventory, and to

store the property seized as required by law. Furthermore,

this seach warrant shall be executed between the hours of

6:00 a.m. and 8:00 p.m. and within a reasonable time, not

to exceed sixty (60) days from the date of issuance. Return

shall be made to the issuing judicial officer within five (5)

days after execution.

DATED this 3rd day of November, 1980.

/s/ William R. Butler

idge