concurring. I reluctantly concur in the decision of the court. I do so only because the search in question ultimately led to the seizure of a gun safe, which could have contained the television. It strains my credulity to conclude that the search of the appellant’s home was reasonable under the circumstances. This particular search took place over a three-hour period with the participation of nine or ten police officers, who were ostensibly looking for three conspicuous items said to be located in the home. Although two of the items were found immediately, the police spent considerable time rummaging through cabinets, drawers and small containers in an attempt to discover the sole remaining item, a television, which could not possibly have been found in such places.
I am aware that some evidence found as a result of this search was not utilized, and that appellant has civil remedies that he can pursue, if he feels aggrieved by the circumstances surrounding the search. Yet, taken as a whole, given the extent of the search, the number of officers and the total man-hours involved, it is my view that this search violated the spirit of the Fourth Amendment. Rule 13.3(c) of the Arkansas Rules of Criminal Procedure begins by stating “[t]he scope of the search shall be only such as is authorized by the warrant and is reasonably necessary to discover the persons or things specified therein.” It becomes apparent, when other items were found in small containers or spaces that could not contain the television, that the search went beyond what is reasonably necessary to discover the things specified. In addition, I agree that the trial court is in a better position to assess the credibility of the officers’ testimony regarding the smell of marijuana “emanating” from such a tightly-built safe. It does give me pause though to question the statements of some of the law enforcement personnel, when police officers state they can smell marijuana wrapped in 64 Ziploc plastic bags placed in grocery sacks from an air-tight, steel safe.
I feel that it is the duty of a reviewing court to ensure that the scope of searches is limited within reason, so as to not completely abridge the guarantees of the Fourth Amendment. I see no evidence in the record to disagree with the trial court’s assessment of Officer Rodney Combs as having little regard for the Fourth Amendment; however, I am not convinced that the distinction made based on whether he was in charge of the search is controlling.
No matter how laudable the goals of law enforcement officers in combating crime, the Constitution should not be sacrificed in this pursuit, and officers should refrain from using excessive zeal to that end. I can understand the frustration of law enforcement officials and citizens, many of whom perceive the criminal justice system as being cumbersome and ineffective, but in our quest to effectuate the goals of the system, we must not allow our individual rights to be disregarded. For this reason, I would like to express that searches such as this should not be condoned in the future.