dissenting. The arrests in this case were set up by a paid informant (a convicted felon) who took the police’s money, snitched on the Moores, and vanished. His whereabouts are still unknown. He had never been used by the Conway Police Department before and they had no information on his reliability except through a conversation with a deputy sheriff who did not furnish any factual information concerning the reliability of the informant. There is simply no proof of the reliability of the informant. Moreover there is nothing in the record which could be considered substantial evidence to uphold the convictions against Paula McCray and Nathaniel Billings.
McCray and Billings rented a room at the residence apparently owned or at least occupied by Gary and Jenni Moore. Also, another guest or boarder named Kenneth Haskett was present at that address. Although the informant apparently did not give the Moores’ exact address, he did give enough information for the police to locate the Moores’ residence.
At the time the officers arrived with the warrant, which I consider invalid, there was no mention of the name of McCray or Billings. They were, in fact, inside their rented room with the door locked. They responded only under duress. After illegally searching the room, the police recovered some items called drug paraphernalia — namely, a couple of pipes which could be used to smoke marijuana, or for that matter, tobacco.
A search warrant, serves a high function and should be examined very closely and not issued in a cavalier fashion. The protection of the home is still sacred to the people of America. One’s privacy in his dwelling place should be zealously guarded and invasion of this right should not be viewed lightly by the courts. As the United States Supreme Court stated in McDonald v. U.S., 335 U.S. 451 (1948):
The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to constitutional requirements and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.
In the present case the dwelling place of McCray and Billings was invaded without a search warrant naming them or describing what was to be sought. There was a complete absence of compliance with the requirements of the Fourth Amendment prior to issuance of the search warrant, and then the warrant itself did not authorize the search of McCray’s and Billings’ rented quarters. It was in fact a warrantless search with respect to these two individuals.
The United States Supreme Court has further discussed such searches in the case of Stoner v. California, 376 U.S. 483 (1964), where it stated:
No less than a tenant of a house, or the occupant of a room in a boarding house,... a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. That protection would disappear if it were left to depend upon the unfettered discretion of an employee of a hotel. It follows that this search without a warrant was unlawful. Since evidence obtained through the search was admitted at the trial, the judgment must be reversed.
I am most puzzled by the majority opinion because it affirms the conviction of the only two people who were obviously not guilty of the charge for which they were convicted. Certainly without the evidence produced by the search the state would have no case against these two. Jenni Moore, who at the time of the raid was seated in the living area of the house amidst drug paraphernalia, has been discharged by this court. Her renters, who were in their private bedroom behind locked doors, have been left to suffer the penalties pronounced.
There was no warrant issued which permitted a search of the rented room of these two appellants. Nevertheless, by force, the officers intruded into their locked bedroom and searched it. There was no evidence found showing that McCray and Billings possessed drug paraphernalia. Moreover, no one, not even the so-called confidential informant, provided probable cause to search the room rented by McCray and Billings.
This is clearly a case where severance should have been granted. The failure to do so was prejudicial to all of the defendants in this case and it violated both our rules and our prior decisions. See A.R.Cr.P. Rule 22.3, which requires a severance when the statement of one codefendant is to be used in a trial against all of them. The effort to “Brutonize” the prior statement of Gary Moore resulted in prejudice to all the others. This stage of the trial was a complete fiasco, as revealed by the majority opinion. Why the reversal should not apply to all of the defendants is something I cannot understand.
I believe the case should also be reversed and remanded as to Paula McCray and Nathaniel Billings with directions to suppress the evidence against them.