dissenting. I do not agree with the majority opinion in this case. I agree that we have no search warrant statute in Arkansas directed specifically to the possession of LSD, but I am of the opinion such statute was not necessary to the validity of search and seizure conducted in this case. It is true that after more than 100 years in the recent case of Grimmett v. State, 251 Ark. 270A, 476 S.W. 2d 217, we said: “Thus we must conclude that there is no common law authority in this State for the,issuance of a search warrant for contraband.” I consider this statement as obiter dictum in Grimmett v. State, and I consider it inapplicable to the case at bar even if it were not dictum. The factual distinction between this case ,and Grimmett was the reason I joined the, concurrence in Grimmett.
As I interpret the effect of the majority opinion in the case at bar, based as it is on Grimmett, supra, now after more than 100 years of legal history in Arkansas, we conclude that all searches under warrants are unreasonable within the prohibition of our Constitution unless there is a specific statute in Arkansas, or an Act of the English Parliament , passed prior to the founding of Jamestown in 1607, specifically authorizing the specific search.
In Grimmet, supra, the court points out that the search warrants for contraband became a part of the common law of England by an Act of Parliament in 1622. It is then pointed out in Grimmett that the common law of England was adopted at the founding of Jamestown on March 24, 1607, and concludes, in effect, that we just missed having common law authority for contraband search warrants by 15 years and therefore there was no authority for the issuance of the search warrant in the Grimmett case; and the majority in the case at bar concludes that since we so held in the Grimmett case, the appellant Morris must also go free.
The majority in Grimmett points out how the search warrant law of England pertaining to stolen property became imbedded in the common law by “imperceptible practice,” but they completely overlook the imperceptible practice in these United States including Arkansas where only unreasonable searches are prohibited by the Constitution under the police power of the state, and where all powers are reserved to the people not prohibited by the Constitution.
As I interpret the majority opinion it would apply the term “contraband” to anything the possession of which is prohibited by law, and on the basis of Grimmett v. State, supra, would send law enforcement officers to the legislature rather than to the courts of this state for authority to search out and seize narcotic drugs destined for the illegal market even when illegally possessed, packaged, and stored by known drug pushers within the sanctity of their private domains.
It is my view that the majority fails to distinguish between common law “contraband” and hard narcotic drugs in the possession of individuals in strict violation of the criminal laws. It is perfectly obvious that the majority fails to distinguish Grimmett v. State, supra, from the case at bar. Grimmett is distinguished from the case at bar in the first paragraph of that opinion where we said:
“Grimmett, a dispensing physician of Waldo, Arkansas, was convicted of failing to maintain a complete and accurate record of drugs, contrary to the Arkansas Drug Abuse Control Act, Ark. Stat. Ann. § 82-2101, et. seq. (Supp. 1971.”
Grimmett was not charged with the unlawful possession of drugs in violation of the law. He had the perfect right to have the drugs he did have in his possession. He was charged and convicted for failure to keep proper records of what he did with the drugs he legally had in his possession. Even the first portion of the statute under which Grimmett was charged distinguishes that case from the case at bar. The statute under which Grimmett was charged, Ark. Stat. Ann. § 82-2107 (a) (Supp. 1971) provides:
“No person shall manufacture, compound or process [not possess] in this State any depressant or stimulant drugs, except that this prohibition shall not apply to the following persons whose activities in connection with any drug are as specified in this subsection:
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(a) (5) Practitioners licensed in this State to prescribe or administer depressant or stimulant drugs, while acting in the course of their professional practice.”
As above stated, Grimmett was convicted under a separate section of the above statute for failure to maintain a complete and accurate record of drugs and although he had a perfect right to have the drugs in his possession, his drugs as well as his records were taken under a search warrant for the purpose of measuring his records against his supply of drugs, and his drugs as well as his records were used in evidence against him at his trial.
In the case at bar the appellant Morris was not a licensed physician not was he charged with the manufacture, compounding or processing of stimulant drugs in this state. Morris was charged with the possession of LSD in violation of Ark. Stat. Ann. § 82-2110 (Supp. 1971) which simply provides:
“It shall be unlawful for any person, except as provided herein, to use, possess, have in one’s possession, sell, exchange, give or attempt to give to another, barter or otherwise dispose of: * * * LSD # # #>>
In the case at bar, Morris maintained an apartment frequented by young people of unusual demeanor and in unusual numbers. A police officer talked with Morris who appeared at his door armed with a pistol and the officer had reasonable grounds to suspect that Morris possessed LSD in his apartment. A search warrant was issued and served, LSD was found in Morris’ possession. Morris was charged with possession and was convicted. This case is quite different on its facts from Grimmett.
In the 1946 case of Harris v. United States, 331 U. S. 145, the defendant was convicted for the unlawful possession, concealment and alteration of notice of classification cards in violation of the Selective Service Act. In that case the court said:
“. . .[T]he objects sought for and those actually discovered were properly subject to seizure. This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime. * * *
The dangers to fundamental personal rights and interests resulting from excesses of law-enforcement officials committed during the course of criminal investigations are not illusory. This Court has always been alert to protect against such abuse. But we should not permit our knowledge that abuses sometimes occur to give sinister coloration to procedures which are basically reasonable.” (Emphasis added).
In Camden County Beverage Co. v. Blair, 46 F. 2d 648, revenue agents forcibly entered and without a search warrant took samples from the beverage plant, and in that case the court said:
“While it is true that generally the Fourth and Fifth Amendments may be construed together, there is a clear distinction between the seizing of contraband articles, or property illicitly possessed, and the obtaining of papers or writings which may be produced as evidence against the possessor in a criminal, penal, or forfeiture proceeding. The former may be seized on a valid search warrant, or without warrant, if the circumstances justify it; whereas the seizure of the latter, unless under exceptional circumstances, by any means is always unlawful.
In Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647, Mr. J. Clarke, who delivered the opinion of the court said:
‘Although search warrants have thus been used in many cases ever since the adoption of the Constitution, and although their use has been extended from time to time to meet new cases within the old rules, nevertheless it is clear that, at common law and as the result of the Boyd and Weeks Cases, supra, they may not be used as a means of gaining access to a man’s house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful and provides that it may be taken. Boyd Case [116 U. S.] pp. 623, 624 S. Ct. 524, 29 L. Ed. 746.’ Page 309 of 255 U. S., 41 S. Ct. 261, 265.” (Emphasis supplied).
In the 1926 New York case of People v. Defore, 211 N. Y. S. 134, the defendant was convicted of criminally carrying and possessing a balckjack. The court, citing from Boyd v. United States, 116 U.S. 616, said:
“ ‘The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case the government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to aviod the duties payable on them, has been authorized by English statutes for at least two centuries past, and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the Act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of the body did not regard searches and seizures of this kind as 'unreasonable,’ and they are not embraced within the prohibition of the Amendment. So, also, the supervision authorized to be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures.’ ”
In addition to the language from Gouled v. United States, 255 U. S. 298, cited in Camden County Beverage Co. v. Blair, supra, the Court in Gouled also said:
“There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant. Stolen or forged papers have been so seized. Langdon v. People, 133 Illinois, 382, and lottery tickets, under a statute prohibiting their possession with intent to sell them, Commonwealth v. Dana, 2 Mete. 329, and we cannot doubt that contracts may be so used as instruments or agencies for perpetrating frauds upon the Government as to give the public an interest in them which would justify the search for and seizure of them, under a properly issued search warrant, for the purpose of preventing further frauds.”
In the 1966 case of Cooper v. California, 386 U. S. 58, the court said:
“. . . [T]he question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.
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It is no answer to say that the police could have obtained a search warrant, for ‘[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’ United States v. Rabinowitz, 339 U.S. 56, 66.” (Emphasis supplied).
To summarize in two short sentences: The majority hold that there was no constitutional or statutory authority for the issuance of the search warrant in this case. It is my position that there was no constitutional or statutory prohibition against it.
I would affirm the judgment.