concurring in part and dissenting in part. I depart from the majority in its holding that Ms. McCambridge has a valid privacy argument. The majority relies largely on the Supreme Court’s decision of Whalen v. Roe, 429 U.S. 589 (1977), when concluding McCambridge has a right to avoid disclosure by the government of a personal letter left her by her son. In my view, the court’s reliance is misplaced.
In this case, police officers obtained the Markle letter, which was directed to his mother as a result of a criminal investigation. The Little Rock Police Department later closed its investigation, finding that Markle killed his family and then committed suicide. At that point, the information gathered by the police became subject to disclosure under the Arkansas Freedom of Information Act (FOI Act), as we recently interpreted that Act in City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988). Although the majority suggests that, irrespective of the FOI Act, the disclosure of a personal letter from Markle to McCambridge is subject to the privacy right of McCambridge, I submit that the court in Whalen never intended to extend such a right to this type of fact situation.
Here, police officers conducted a proper fourth amendment search and seizure of the Markle residence, and as a result, they acquired Markle’s letter along with the other items and evidence found at the crime scene. Thus, we have no one’s privacy and security being arbitrarily invaded in violation of the fourth amendment. While we do not have the same concern that the court addressed in Katz v. United States, 389 U.S. 347 (1967), the court there did make it clear that the right of privacy under the fourth amendment cannot be translated into a general constitutional “right of privacy.” On this point, the majority court and the parties in this cause have failed to cite any cases that involve a privacy right to avoid disclosure of personal matters which the government acquired as a result of a criminal investigation. By the same token I am aware of none.
From my reading of the cases in this area, and I would be the first to admit that they are far from clear, I find no indication that the right of privacy applies to the disclosure of information obtained through a valid search and seizure. In my view, state law controls the disclosure issue before us, not the constitutionally protected right of privacy. McCambridge simply has no privacy right in this cause. The sole issue, in my judgment, is whether the Markle letter is subject to disclosure under the FOI Act, and considering this court’s recent decision in Rose, I have no doubt that it is.