Durham v. State

J. Fred Jones, Justice

dissenting. I do not agree with the majority opinion in this case. There is no question that Sheriff Martin as well as Hardin related to Justice Lee all they knew about the case in explaining to him why they suspected the appellant as the burglar, and why they suspected that the appellant had the remainder of the stolen articles concealed on his premises. There is no question that they gave Justice Lee probable cause and reasonable grounds for issuing the search warrant. The majority opinion recognizes this, but seems to conclude that the witnesses were under oath to only so much of the information Justice Lee wrote into the paper affidavit forms. The majority opinion seems to turn on whether Justice Lee first took the information under oath and then wrote all, or a part of it, into the affidavit forms which were subscribed and sworn to, or whether he first wrote out the information on the affidavit forms which were then subscribed and sworn to. The search warrant itself was regular and valid on its face. Its validity was approved by the magistrate who issued it, and its validity was approved by the circuit judge who saw and heard the witnesses as they testified at the hearing on the motion to suppress.

Justice Lee did not have printed affidavit forms for search warrants but he did have printed affidavit forms for arrest warrants. So he attempted to use a handwritten form prepared by the sheriff and also printed affidavit for arrest forms which he attempted to convert into affidavit for search warrant forms. At the heáring on the motion to suppress Sheriff Martin testified:

“This is handwritten because the Justice of the Peace did not have a form affidavit for a search warrant. The affidavit originally was for a warrant of arrest and he added 'and search’ and, of course, the handwritten affidavit is the one that I made. It is in my writing and is signed by me and sworn to before the Justice of the Peace.
Q. It was sworn to by you?
A. Yes, sir.
# # #
Q. I believe I understood you to say that the Justice swore you to your affidavit?
A. Yes, sir.
Q. Was it on the basis of your handwritten affidavit here that the Search Warrant was issued that we are now using in Case No. 52?
A. We told him the same story that we have told you. In other words, we told him why we were there.”

Mr. Hardin testified to the above facts as to reporting the license number to the sheriff and subsequently identifying his stolen .22 rifle in the back of the appellant’s pickup truck, after which he went with Sheriff Martin to Justice Lee’s home to obtain the search warrant for the search of appellant’s premises. In this connection Mr. Hardin testified, in part, as follows:

“Q. Then did you .go over to Justice Lucien Lee’s house?
A. Yes, sir, and signed this right here.
Q. You are pointing there to an affidavit that you made?
A. Yes, sir.
Q. Who wrote that out, Mr. Hardin?
A. Lucien Lee, I suppose.
Q. Well, you should—
A. Well, I seen him writing and I read it.
Q. Sir? You were there?
A. Yes, sir, Lucien Lee.
Q. Lucien Lee wrote it out?
A. Yes, sir.
Q. Then, what did he do with it?
A. Had me to sign it and Sheriff Martin took it.
Q. Did Squire Lee swear you to that affidavit?
A. Yes, sir.
Q. Had you hold up your hand?
A. Yes, sir.
Q. And then that affidavit there would be what he issued this Search Warrant on I suppose?
A. Yes, sir.
Q. Would that be right?
A. I suppose that’s right, yes, sir.”
(Emphasis added).

Now the affidavit form prepared in longhand recites that Ray Martin, sheriff of Sharp County, states on oath that he has good reason to believe that on May 23, 1970, Charles Durham broke and entered and carried away property from the home of Neal Hames (another prosecuting witness whose house had been burglarized on the same afternoon). A blank affidavit for warrant of arrest (and search) was also signed by Sheriff Martin and sworn to before Justice Lee. The affidavit form signed and sworn to by E. G Hardin is on an affidavit for warrant of arrest form with the words “and search” added. This form is filled out to the effect that on the 23rd day of May, 1970, Charles Durham committed the crime of burglary by breaking and entering Hardin’s residence and unlawfully removing therefrom a .22 caliber automatic rifle, a 30-30 caliber lever action Winchester Saddle gun and some other specifically described property. The printed affidavit form (originally an affidavit for arrest form), in the printed portion, prays a warrant from Lucien J. Lee, Justice of the Peace, to apprehend said Charles Durham (the appellant) to be dealt with according to law. This form was subscribed and sworn by Mr. Hardin before Justice Lee.

The majority view seems to be that Justice Lee either put everything into the affidavit forms that was testified to under oath by Sheriff Martin and Mr. Hardin, or that he was required to do so before he could issue a valid search warrant. I do not have such view. It is my view that Justice Lee was not required to try the defendant in Absentia with a complete record of the evidence transcribed in the affidavit form, neither was it necessary for Justice Lee to be convinced beyond a reasonable doubt. It is my view that an affidavit for a search warrant is primarily for the information and benefit of the magistrate who has been requested to issue such warrant, and it is my view that a form affidavit is not necessary for the procurement of a valid search warrant in every case. It is not required by the constitution and was not required by statute when the warrant in this case was issued.

Amendment 4 of the United States Constitution and Art. 2, § 15 of the State Constitution having to do with unreasonable searches, for all practical purposes are identical. The language of the state provision is as follows:

“The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.”

Ark. Stat. Ann. § 43-201 (Repl. 1964), under which the warrant in this case was issued, provides as follows:

“Upon complaint being made on oath, before any officer authorized to issue process for the apprehension of offenders, that any personal property has been stolen or embezzled, and that the complainant suspects that such property is concealed in any particular house or place, if such officer shall be satisfied that there is reasonable ground for such suspicion, he shall issue a warrant to search for such property.”

Thus it is my opinion that all the constitution requires is “probable cause supported by oath or affirmation,” and all that the statute requires is a “complaint . . . made on oath.” Justice Lee made out the search warrant on the basis of the complaint made to him by Sheriff Martin and Mr. Hardin, they were his only source of information. There is nothing in the record indicating that Justice Lee had any personal interest in the case or knew anything about the facts other than those furnished by the complainants. The majority seem to concede that Justice Lee had reasonable grounds for suspicion, as set out in the warrant, but conclude that grounds stated were not stated under oath. Justice Lee states otherwise in the face of the warrant. The search warrant issued by Justice Lee recites as follows:

“Whereas, Complaint has been made, on oath, before the undersigned, one of the Justices of the Peace in and for the County of Lawrence by E. C. Hardin that certain property of his, to-wit: One 22 Cal. Automatic Steven Rifle, one 30-30 Cal. Lever Action Winchester Sadie Gun, and one 303 Cal. British Rifle, with Bayonet block removed, and stock forearm shortened, and hole where sling strap was inserted, filled with plastic wood, has been stolen, or embezzled, and that the said complainant suspects that such property is concealed in the House, Car, Truck, barn or 'upon the premises or other property occupied by Said Charles Durham in said County; and Whereas, Being satisifed that there is reasonable ground for such suspicion YOU ARE THEREFORE HEREBY COMMANDED, To search the said place above mentiond, where such property is suspected to be concealed, in the any hour of day or night, including Sunday, and to bring such property or any part thereof, which may be found, before me, the said Justice, forthwith. Hereof fail not, and make return of this writ.” (Emphasis added).

This is not a case where the complainant seeking a search warrant did so on “information and belief” obtained from an undisclosed confidential source as was the situation in Walton v. State, 245 Ark. 84, 431 S. W. 2d 462. The information presented to the Justice of the Peace in the case at bar was based on the eye witness account of Mr. Hardin, who had seen the appellant’s truck leave his home in Sharp County; and immediately thereafter he found that his home had been burglarized and his rifles stolen. The very next day he saw with his own eyes the appellant in possession of one of his stolen rifles near appellant’s home in Lawrence County and he so advised Justice Lee when he requested the search warrant.

With the above background, I now come to the crux of my disagreement, which lies in the interpretation of Justice of the Peace Lee’s testimony. Justice Lee apparently felt that some paper affidavit form bearing a jurat was necessary and it is clear to me that he recognized that the forms he had were inadequate for the purpose. As I interpret his testimony, he not only attempted to prepare paper affidavit forms and have the complaining witnesses sign them under oath, but that the oath, or oaths, he administered also covered the information furnished him as a basis for the search warrant he issued, and was not restricted only to that portion of the information or testimony he wrote into the affidavit forms. That part of Justice Lee’s testimony from which I reach my conclusion, is italicized in his testimony, as follows:

“Q. Did you swear them at the time they signed to the affidavits that they signed?
A. I did. In addition I swore them to testify to that as well as signing the affidavits for the Warrants, which states, ‘I do solemnly swear that the allegations set forth are true to the best of my knowledge and belief.’ * * * But in addition to that, I administered an oath to them to testify to the fact or the reasons that they wanted the Search Warrant. * * * In other words, there was a double oath. The one that they signed on the form and then the one that I administered to them.
# # #
Q. . . . Judge Lee, let me put the question this way and maybe I can keep from going back over all that has been testified to and tie it right down. Was the reason that these gentlemen gave you for wanting the Search Warrant for the Durham house, was that reason based on what they told you had happened a day or two before that that led them to suspect that Durham might be guilty of stealing some guns and had directed their attention toward him as being the possible guilty party — was that the kind of reason that they gave you for the search warrant?
A. That’s right, and also finding an automatic rifle that was owned by Mr. Hardin in Mr. Durham’s truck as it passed through Linn.
Q. But still if I understand you, that was the kind of reason that they gave for the search warrant?
A. Yes, sir.
Q. And there was nothing — there was no particular reason they thought that Durham’s house or barn or premises might have some stolen property on it except simply that they suspected Durham, would that be about the—
A. That would be about the substance of it other than there were other guns aside from this automatic .22 rifle that they found in his truck. You know, he recognized it so he testified before me and told me in procuring the warrant, Mr. Hardin did, that he recognized the .22 automatic rifle in Durham’s truck and then there were some others stolen from him that was embodied in the search warrant and they wanted a search warrant to obtain those guns or the property, if possible.
Q. Are the other guns that you are talking about there the ones that were described in the search warrant?
A. Yes.
Q. Did either of the men give you any reason why they thought the stolen property would be found on the Durham farm other than adjoining farms except for the fact that they suspected Durham pretty strongly and this was his farm and premises?
A. That’s right and finding the gun in his possession.
Q. The finding of the gun was what directed their suspicion toward Durham?
A. That’s right.” (Emphasis added).

It appears to me that the majority opinion in this case continues to muddy the already clouded 4th Amendment waters. (See concurring and dissenting opinions in Coolidge v. New Hampshire on certiorari to Supreme Court of New Hampshire, June 21, 1971). Law enforcement officers, including Justices of the Peace and magistrates, should not be required to search the unfamiliar and unclear depths of Supreme Court decisions for precise, and court approved language, to be incorporated into affidavits for search warrants before a valid search warrant can be issued.

The great differences in judicial opinion on questions of constitutional interpretation seem to arise from the so-called “strict” as opposed to “liberal” interpretation of its provisions. I recognize a possibility that under strict construction the constitution could be interpreted into a hard and rigid shell with the benefits of its provisions alienated and cut off from the people it was intended to protect and from the purposes it was intended to serve. I also recognize a possibility that through liberal construction the constitution could be interpreted into an instrument having the qualities of a mirror wh^ch would only reflect the changing views and philosophies of those charged with the responsibilities of looking into its provisions. Consequently, I accept strict construction as carrying the lesser evil of the two possibilities.

It is my opinion that when a man’s house has been burglarized and his goods hauled away in a particular truck, and when the driver of that truck later flaunts a part of the stolen goods before the eyes of the victim of the burglary, the victim is justified in suspecting the truck driver as the felon, and is also justified in suspecting that he has the remainder of the stolen goods secreted on his premises. It is further my opinion that when such facts are made known by a complaint under oath, before a magistrate, the magistrate has probable cause to issue a search warrant for the search of such premises.

When armed with a search warrant regular and valid on its face, it is my view that police officers should not be made unlawful trespassers in a search for stolen property by ambiguous testimony as to what specific portions of the information furnished the issuing magistrate were under oath and what portions were not. It is my opinion that the constitution contemplates no such procedure nor does the statute require it. Probable cause supported by oath or affirmation, and a complaint being made on oath, is all that should be required. It appears to me that the rule of evidence so recently recognized as “the fruit of a poisonous tree” has found fertile ground in the 4th Amendment and if permitted to grow and multiply unchecked, could easily obliterate the 4th Amendment or stunt and warp its purpose beyond recognition. I am of the firm opinion that both the constitutional and statutory requirements were fully met and complied with in this case; and that the .22 rifle, as well as the other objects of the search, was admissible in evidence against the appellant.

I would affirm.

Harris, C. J., joins in this dissent.