author: Steele Hays, Justice. Darrell Hickman, Justice,

text:
    Gilberto DOMINGUEZ and Jose Luis MONTALVO v. STATE of Arkansas
    CR 86-85
    720 S.W.2d 703
    Supreme Court of Arkansas
    Opinion delivered December 8, 1986

      Charles A. Potter, for appellants.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This case involves the validity of a regulatory inspection pursuant to Ark. Stat. Ann. § 73-1760(c) and § 73- 1773(b) (Repl. 1979), contained in the Motor Carrier Act of 1955 (§§73-1754 — 73-1779 [Repl. 1979 &Supp. 1985]).

Two agents of the Arkansas Transportation Commission, Richard Birtcher and Charles Colwell were parked by the median of the interstate when they observed a U-Haul truck drive by. The truck was occupied by the two male appellants, Gilberto Dominguez and Jose Montalvo. The transportation enforcement officers decided to stop the truck “to see what they were hauling” and the appellants were pulled over. According to the officers, no violation was observed, it was merely a “routine stop.”

Birtcher checked the registration, lease agreement and appellants’ drivers’ licenses and found no problem with any of these documents. Appellants said they were hauling furniture for a man in San Antonio who was going to Indiana. They had no address, but did have a telephone number they were supposed to call when they got to Evansville. Communication was hampered by appellants’ limited English. When, at the direction of the officers the appellants opened the back of the truck, the odor of marijuana was apparent. The officers had appellants drive to the next exit for a more thorough search away from the traffic.

The officers mentioned other things they found suspicious: the furniture was used but had been cleaned, and the furniture was not complete for any room but just made up of odd lots. One of the officers went into the truck and opened up a box containing marijuana. The appellants were then handcuffed and read their rights.

Appellants were found guilty of possession with intent to deliver and sentenced to six years and a fine of $15,000. From these judgments, appellants bring this appeal. They raise only one argument, that the court erred in refusing to suppress the evidence as the result of an illegal search.

The question on appeal is whether the stop and resulting search were authorized under the Arkansas Motor Carrier Act as a constitutionally permissible administrative inspection, as the state argues, or whether, as appellants argue, the stop was not within the scope of the act and therefore the search was illegal and the evidence tainted.

The statute from which the ATC agents claim their authority is part of the Arkansas Motor Carrier Act of 1955, Ark. Stat. Ann. §§ 73-1754 — 73-1779. Section 73-1760(c) provides for the appointment of enforcement officers with full authority throughout the state to make arrests. The pertinent portion reads:

Such enforcement officers upon reasonable belief that any motor vehicle is being operated in violation of any provisions of this Act, shall be authorized to require the driver thereof to stop and exhibit the registration certificate issued for such vehicle, to submit to such enforcement officer for inspection any and all bills of lading, waybills, invoices or other evidences of the character of the lading being transported in such vehicle and to permit such officer to inspect the contents of such vehicle for the purpose of comparing same with bills of lading, waybills, invoices or other evidence of ownership or of transportation for compensation. (Emphasis added).

The Fourth Amendment’s prohibition against unreasonable searches applies to administrative inspections of private commercial property as well as criminal investigations, Donovan v. Dewey, 452 U.S. 602 (1981), and a vehicular stop and detention of its occupants constitutes a seizure under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648 (1979). Not every search and seizure is forbidden by the Fourth Amendment, only unreasonable ones. The central inquiry is the reasonableness under all the circumstances of the particular governmental invasion of a citizen’s personal security and that inquiry becomes a dual one — whether the officer’s action was justified at the inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980); Terry v. Ohio, 392 U.S. 1 (1968). The burden of proof is on the party seeking the exemption from the requirement of a warrant. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978); Asher v. City of Little Rock, 248 Ark. 96, 449 S.W.2d 933 (1970). The state must prove that a warrantless intrusion was not in violation of the Fourth Amendment and not subject to constitutional protection. The state has failed to make that showing.

It is not necessary for us to consider the propriety of the search itself under § 73-1760(c), as the initial stop was not authorized by the statute and therefore the search was not proper. Webb v. State, supra.

The stated purpose of the Motor Carrier Act is the regulation of motor carriers, §§ 73-1755 — 73-1756. Motor carriers are any persons, who directly of indirectly transport property or passengers for compensation. §§ 73-1756,73-1758(a)(7), (8), (9). The act does not include all vehicles transporting for compensation. It specifically states that nothing in the act shall be construed to include certain vehicles. Specifically exempted from the act are “occasional” or “reciprocal” transporters, those not engaged in transportation by motor vehicle as a regular business. Duck v. Arkansas Corporation Commission, 203 Ark. 448, 158 S.W.2d 24 (1942); § 73-1758(b)(6). Also exempted are private carriers — those which transport property by motor vehicle where such transportation is incidental to or in furtherance of a commercial enterprise of such persons, other than transportation. Private carriers are subject to the act only with respect to safety of operation and equipment standards. § 73-1758(a)(14), (b)(3). Also excluded are: transporters of a large number of agricultural commodities (with exception of safety operations), several types of building and quarry materials, gasoline and certain related products, certain wood products, all taxi cabs licensed by municipalities, vehicles operated by an agricultural cooperative, and school buses.

Appellants correctly contend the agents went beyond the authority granted by § 73-1760(c). The state does not base the agents’ authority on this statute but relies primarily on another section of the act. We think it necessary to address the point, however, to correct a misinterpretation of § 7 3-1760(c) by the agents. They testified they had authority to make routine stops without evidence of a violation, and-further, that their jurisdiction extended to “anything that might be hauling for hire,” which included taxicabs, pickup trucks, panel trucks or anyone being paid to transport goods. It was on this basis the agents believed their authority to stop appellants was derived, that is, the authority to make a routine check of any vehicle that might be hauling for hire.

We reemphasize that all vehicles “hauling for hire” are not within the jurisdiction of the act, rather, numerous exceptions are made. But irrespective of whether appellants were within the jurisdiction of the act, the agents were mistaken as to their powers, as there is no authority under § 73-1760(c) to make a “routine check” of any vehicle within their jurisdiction. To the contrary, § 73-1760(c) clearly recites that authorization to make a stop is dependent on a reasonable belief that a vehicle is in violation of the act. The agents admitted they detected no violation, that appellants were simply subjected tó a “routine stop.” That being so, the agents went beyond the authority granted by the legislature and the stop was therefore unlawful.

The state argues the agents’ authority is found under another provision of the act which it interprets as allowing administrative inspections such as the one involved in this case. § 73-1773(b) provides:

The Commission or its duly authorized agents shall, at all times, have access to all lands, buildings, or equipment of motor carriers used in connection with their operation and also all pertinent accounts, records, documents and memoranda now or hereafter existing, and kept or required to be kept by motor carriers.

Administrative inspections have been allowed for routine stops of motor carriers in one jurisdiction, see State v. Williams, 648 P.2d 1156 (Kan. App. 1982). The two cases are distinguishable, however, both on the facts and on the wording of the statute. And State v. Williams is not helpful for our purposes. An examination of our own act points to some initial difficulties with the state’s contention. We first note there are hurdles that must be overcome in meeting minimum constitutional standards which would include finding sufficient safeguards against unbridled discretion by enforcement officers. See Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978). Too, a conflict is readily apparent between § 73-1760(c) and § 73-1773, casting doubt on whether the latter authorizes highway stops on demand for routine checks of motor carriers. For § 73-1760(c) authorizes stops only on a reasonable belief of a violation, with other language indicating the statute is clearly applicable to motor carriers (references to the inspection of bills of lading and waybills — terms that would apply only to motor carriers). However, the case before us does not require a determination of the intended purpose or constitutionality of § 73-1773. For as we shall see, even if it could be said the statute authorized routine checks of motor carriers, such an administrative basis would not be sufficient to justify the constitutionality of the stop which occurred here.

The act provides for the inspection of “motor carriers,” which includes both authorized and unauthorized carriers. §73-1758(9). How an agent determines in advance whether a carrier is authorized is not apparent from the act nor anything presented in the record, however, under § 73-1777, all carriers are required to affix to the side of the vehicle the name of the carrier and the certificate or permit number. Certainly, if the statute were to authorize a routine regulatory search, which included highway stops, vehicles so identified could properly be stopped. The problem is determining under what circumstances a vehicle not so identified, as in this case, is subject to a regulatory stop.

The limitations of a vehicle stop are stated in Delaware v. Prouse, 440 U.S. 648 (1979), reiterating the standard announced in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), that warrantless stops of motor vehicles are prohibited by the Fourth Amendment absent specific articulable facts which reasonably support an inference of a violation of the laws respecting use of the vehicle.

Under administrative searches, however, the Fourth Amendment requirement of reasonableness of any intrusion is supported by grounds other than probable cause (or reasonable suspicion). Essentially, business inspections are justified without warrants or probable cause when the need for governmental inspection outweighs the invasion of the individual. This balancing process includes the critical consideration that individuals subject to search are aware of the potential of an inspection and its scope because of their participation in the regulated activity. See Donovan v. Dewey, 452 U.S. 594 (1981); United States v. Biswell, 406 U.S. 311 (1972); Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); Camara v. Municipal Court, 387 U.S. 523 (1967). The business inspection exception to the probable cause requirement would not support a search under § 73-1773 of vehicles not clearly within the regulated business.

Those vehicles not clearly identifiable as motor carriers which could conceivably fall within this act include a significant number of vehicles using the highways. Of these, a substantial number could be stopped which are not motor carriers. For such individuals, the essential element is absent which makes an administrative search reasonable — they have no participation in the regulatory scheme and therefore have no awareness or anticipation of an inspection. A search on the basis of the administrative authority would be constitutionally objectionable for those not within the business. Donovan, supra, at 599. Therefore, neither is it justified, as the state suggests, to use that authority to make stops of those who might be avoiding regulation through anonymity or disguise. It would be a circumvention of the Fourth Amendment if the business exception to the probable cause or warrant requirement could be used wholly out of the context of its justification and applied to those searches intended for what amounts to no more than the detection of illegal activity from amidst other lawful conduct.

Neither have \ye found cases dealing with administrative searches that have held or suggested that the administrative basis alone can be used as justification to extend searches beyond those in the business in order to find individuals whose specific violation is the avoidance of regulation. The reason is plain, as we have seen. Such administrative authority requires more in order to broaden it to one of a regulatory scheme which includes those not in the business. It was stated in Delaware v. Prouse, supra:

There are certain “relatively unique circumstances” in which consent to regulatory restrictions is presumptively concurrent with participation in the regulated enterprise. [Cites omitted.] Otherwise, regulatory inspections unaccompanied by any quantum of individualized articulable suspicion must be undertaken pursuant to previously specified “neutral criteria.” Marshall v. Barlow’s, Inc., 436 U.S. at 323.

Here, § 73-1773 could not permit any extension of the administrative authority beyond those in the business. It obviously contains no criteria providing a basis for stops of suspected unauthorized carriers and would be left to the unfettered and unbridled discretion of the agents. Nor did the agents’ testimony indicate guidelines had been set up within the agency. To the contrary, their testimony revealed that the stops were no more defined than anyone “who was hauling for hire,” a basis wholly lacking in “neutral criteria.”

We do not suggest that neutral guidelines alone could replace the requirements in Prousé and meet constitutional standards. See Marshall v. Barlow’s, Inc., supra, at 321-323. We merely observe that as a possible alternative to either Prouse or a business inspection, such an approach would fail under § 73-1773.

More significantly we note that the state offered no proof below, nor even suggested that stops that might go so far as to involve the innocent driver of a pickup, panel truck or U-Haul, or even a passenger car under a statute intended to regulate motor carriers, were either crucial to the statutory scheme and its purpose or sufficiently productive to justify the intrusion on a driver’s Fourth Amendment rights where there was no expectation of such an intrusion apd less intrusive means were available. See Delaware v. Prouse, supra. There was not even evidence presented to show justification for such stops of vehicles that were within the act.

The burden of proof was on the state to show an exception to the Fourth Amendment requirements. The state was incorrect in its initial assertion and under the business inspection theory § 73-1773 cannot authorize routine checks of vehicles not clearly identified as motor carriers operating within the regulated business. But neither did the state demonstrate there were any guidelines used in conjunction with the statute or any evidence to suggest the need for extending the authority under § 73-1773 to stops that would include vehicles not within the act. Such stops would therefore be constitutionally impermissible under § 73-1773. Delaware v. Prouse, supra; Marshall v. Barlow's, Inc., supra.

In order to meet minimum constitutional requirements, the state must show under Prouse there were articulable facts which reasonably supported an inference of a violation of the laws respecting use of the vehicle. Under § 73-1773, the agents would have to demonstrate that the facts reasonably supported an inference that appellants were nonauthorized motor carriers — that appellants were transporting property or persons for compensation on a regular basis without the proper authorization from the commission.

The agents testified the truck was being driven by two men, whereas a U-Haul “usually had one driver or a man and his wife and family, or pulling a car.” They also thought it pertinent that the vehicle had a Connecticut license, — “which is a long way from Arkansas and it appeared to be going back in that direction to return the truck or return a load, and it was two male subjects in there which appeared that they may have a load that would take two subjects to load and unload.”

While it can be assumed the U-Haul was carrying goods of some kind, the fact that the cab was occupied by two men rather than a single man or a couple does not support an inference pertinent to the Motor Carrier Act — including an inference that the occupants were transporting goods for compensation. We note in this regard the presence of both male and female truckers on the highways today and the fact that single people with or without a companion will make moves as well as married couples. In short, the sex of the occupants of a truck does not tell us much, and why Connecticut license plates on a truck from an interstate rental agency should arouse suspicion, is not explained.

Aside from suspicion that appellants were transporting for hire, the agents had no other basis for a belief they were carriers under the act. Specifically exempted are occasional transporters who do not regularly engage in transportation for compensation. The agents in this case had no idea whether the appellants were engaged on a regular basis, if in fact they were being paid. Even by the time of trial, the agents did not have any idea on this point, nor did they think it was significant. There is no contention the appellants were acting as unauthorized carriers.

In United States v. Cortez, 449 U.S. 411 (1981) the Supreme Court found under certain circumstances a police officer may rely on his experience and make “inferences and deductions that might well elude an untrained person.” The inferences and deductions made by the agents in this case have escaped us. The fact that an officer is experienced does not obligate a court to accept all of his suspicions as reasonable. Nor does experience alone mean an officer’s perceptions are justified by the objective facts. United States v. Buenaventura-Ariza, 615 F.2d 29 (2d Cir. 1980). And in Cortez, the inferences and deductions had been fully explained at the suppression hearing so that both a particularized and an objective basis for the stop were established. That was not the case here, and we can say that two men in a U-Haul with Connecticut license plates, absent further explanation by the agents, does not support an inference that appellants were transporting goods for hire on a regular basis, and were unauthorized to do so. The state has failed to show that the stop was justified under the minimal constitutional standards of Delaware v. Prouse, supra.

Reversed and dismissed.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. I believe the state proved that these officers had reasonable cause to stop and inspect this U-Haul driven by two males with a Connecticut license plate. It was not a routine stop and there was probable cause for the search. The officers believed the vehicle could be either carrying contraband or illegally transporting goods. From their experience the officers thought something was amiss, and that suspicion justified the stop. After talking with the two men from Texas, who had Indiana drivers’ licenses, the officers’ suspicions were further aroused and the search ensued. The marijuana was found in a box behind some junk furniture.

Since the initial stop was proper, the search was not unreasonable. I would affirm the convictions.


source: Caselaw Access Project

author: Steele Hays, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    David Charles STEPHENS v. STATE of Arkansas
    CR 86-117
    720 S.W.2d 301
    Supreme Court of Arkansas
    Opinion delivered December 8, 1986

      John W. Settle, for appellant.

      Steve Clark, Att’y Gen., by: /. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This criminal appeal challenges two rulings by the trial court. Appellant David Stephens was charged with aggravated robbery, kidnapping and felon in possession of a firearm. Although the victim of the kidnapping testified to being raped several times by appellant, and he was charged with kidnapping for the purpose of engaging in sexual intercourse with her, the appellant was not tried on that charge. The case was heard before a jury and appellant was found guilty on all three charges.

Appellant first argues the trial court erred in allowing the victim to remain in the courtroom during the trial. A.R.E. Rule 616 allows the victim of a crime the right to be present during a trial, notwithstanding Rule 615 which permits the exclusion of witnesses when requested by either party. Rule 615, referred to in trial parlance as “the rule,” makes no specific reference to the victim, but gives the trial court the discretion to make exceptions with respect to: (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause. Rule 616, however, purports to leave no discretion to the trial court. It should be noted that Rule 616 was added to the Uniform Rules of Evidence by the 1985 General Assembly and was not, therefore, affected by our decision in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). We should have adopted Rule 616 as a rule of court along with the other rules of evidence and we hereby do so.

Appellant contends Rule 616 is unconstitutional, but has not demonstrated how the presence of the victim was so fundamentally or inherently unfair as to deprive him of a fair trial. No authority is cited, nor convincing argument given, in support of the argument. Nothing in the constitution touches on the exclusion of witnesses during criminal trials. The Sixth Amendment to the United States Constitution and Article 2, Section 10 of our own guarantee an accused a speedy and public trial and to be confronted with the witnesses against him. Otherwise neither document contains anything that might be seen as a right to limit those who may want to attend the trial.

Inasmuch as the rule permitting the exclusion of witnesses originated with the legislature, we can conceive of no reason why the rule cannot be modified in the same manner, or by court rule if need be. We can suppose that there would be circumstances when the victim’s presence throughout the trial could be seen as putting the fairness of the trial in jeopardy, as occurred in Commonwealth v. Lavelle, 419 A.2d 1269 (Pa. Sup. Ct. 1980). However, we find nothing comparable here and imply no attitude in that regard. The victim was the second witness called and the material parts of her testimony were based on her own knowledge and could not have been influenced by previous testimony.

As his second point, appellant argues the trial court erred in allowing the state to elicit testimony from one of the police officers about appellant’s silence and his request for counsel after having received Miranda warnings. On direct examination the defense made several inquiries into matters relating to appellant’s interrogation. The questions and testimony elicited suggested the appellant had a drug problem, was confused about the events at the time of the crime and interrogation, and was cooperative and helpful when being examined by the police. On cross examination the state asked the officer if appellant had done everything he was asked including giving a written statement. The officer testified the appellant had declined to make a formal statement and had also asked to talk to a lawyer before going any further. Appellant argues that under Doyle v. Ohio, 426 U.S. 610 (1976) this was impermissible and the case should be reversed on that basis.

In Doyle, a defendant’s post-Miranda silence was used to impeach his testimony at trial. The court found the Miranda warning gives implicit assurance to any person who receives it that his silence will not be used against him.

In such circumstances it would be fundamentally unfair and a deprivation of due process to allow the person’s silence to be used to impeach an explanation subsequently offered at trial.

The state contends this case is distinguishable from Doyle because here there was no attempt to impeach an exculpatory story, nor was the testimony offered to show that appellant’s silence suggested guilt. The state argues the testimony went to clarify earlier statements of the officer elicited by the defense which had suggested appellant was confused and couldn’t remember much of what went on. This was also the approach appellant took in his testimony with regard to the events of the crime — he never denied any of the charges but, perhaps to mitigate his punishment, testified he’d been on drugs and had no memory of the alleged crime.

It does not appear that Doyle can be distinguished on this basis. In a very recent case, Wainright v. Greenfield, 474 U.S. __ (1986) (Slip Op. 84-1480), the Supreme Court rejected a similar argument. There the defense was insanity and the burden was on the state to prove sanity. The state argued proof of sanity is significantly different from proof of the commission of the underlying offense and the silence was not being used to suggest guilt. The Court found no warrant for the claimed distinctions from Doyle. The Court said:

The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. ... In both situations [Doyle and the insanity defense] the State gives warning to protect constitutional rights and implicitly promises that any exercise of those rights will not be penalized. In both situations the State then seeks to make use of the defendant’s exercise of those rights in obtaining his conviction. The implicit promise, the breach, and the consequent penalty are identical in both situations . . . What is impermissible is the evidentiary use of an individual’s exercise of his constitutional rights after the State’s assurance that the invocation of those rights will not be penalized.

Under the language of Wainwright, our case would come within the prohibition of Doyle. While appellant’s post-Miranda silence was not being used to suggest guilt or impeach an exculpatory story, it was nevertheless of evidentiary use to the state in the prosecution of its case.

The rule in Doyle however, has its limits and can be overcome in certain circumstances. If the appellant himself initiates the testimony in this area, he may “open the door” for the state. U.S. v. Fairchild, 505 F.2d 1378 (5th Cir. 1975). Such was the case here. The direct examination by the defense of the officer with respect to appellant’s condition and behavior during the interrogation, culminated in the officer agreeing with defense counsel that appellant was polite, cooperative and had done everything asked of him. The state inquired on cross examination whether “doing everything” included giving a written statement and the officer made reference to appellant’s silence and request for counsel. The prosecution did not dwell on this point nor was it referred to again, including closing argument.

The trial court admitted the testimony because the defense had opened the line of questioning and we agree. A very similar situation arose in U.S. v. Fairchild, supra. That opinion preceded Doyle, but the Fairchild court recognized the principle enunciated in Doyle. It found similar proof by the defense had opened the door to the fact of the defendant’s silence. Here, defense questions and the answers received on the topic of the interrogation invited the state to make the limited inquiry it did. See also, Bell v. State, 446 So.2d 1191 (La. 1984).

We note in closing that a curative instruction was given, appellant’s silence was not used to suggest guilt, the line of questioning originated with the defense and the sufficiency of the evidence was never questioned. See, Williams v. Zahradnick, 632 F.2d 353 (4th Cir. 1980). See also, Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982).

The judgment is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. As early as December 15, 1791, with the passage of the Bill of Rights, a person who is suspected of committing a crime has the right to remain silent and the right to have counsel present while being questioned by the authorities. No amendment has changed the Bill of Rights nor do the courts or the various legislatures have the power to do so. In the well-known opinion of Miranda v. Arizona, 382 U.S. 436 (1966), the United States Supreme Court declared that an accused has the right to remain silent without having such silence used against him. The same Court emphasized and reaffirmed Miranda in Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle the Court clearly and unequivocally stated, “It would be fundamentally unfair and a deprivation of due process to allow a person’s silence to be used to impeach an explanation subsequently offered at trial.”

In the present case the appellant’s election to remain silent was used against him by the lower court and this action is being sanctioned by the majority. It makes no difference to an accused whether his constitutional right is denied from the beginning or withdrawn at a later time under the guise of another procedure. The net result is the same; there might as well have been no right from the outset.

It appears that the trial court had the correct insight when it stated, “ [i] t would make me feel better if you didn’t ask him about that, but if you insist, I’m going to let you do it.” The methodology or means used to bring the appellant’s silence to the attention of the jury is immaterial, the result is the same. In this instance the error could have easily been prevented by the trial court informing the prosecutor not to mention the accused’s silence. The reference to appellant’s right to remain silent was not an inadvertent slip of the tongue nor was it “fighting fire with fire.” This was simply and clearly a case where a third party was used to destroy the accused’s right to remain silent.

I disagree with the rationale used to allow the introduction of such testimony under the theory that the defendant “opened the door.” Expansion of this theory might easily result in allowing such testimony to be used to prove that by committing the offense a defendant waives the right to remain silent.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Teddy McAFEE v. STATE of Arkansas
    CR 86-152
    720 S.W.2d 307
    Supreme Court of Arkansas
    Opinion delivered December 8, 1986

      Robert F. Meurer, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant contends his arrest for driving while intoxicated and being a minor in possession of intoxicating beverages was unlawful because the auxiliary sheriffs deputy who arrested him was not being supervised as required by statute. We hold the court did not err in finding the arrest was valid.

The appellant was observed by Ron Vealy, an auxiliary law enforcement officer with the White County Sheriffs Department, driving across the highway center line several times. Vealy stopped the appellant and placed him under arrest.

When the arrest occurred, a Beebe city policeman happened to be present also. The court held that the presence of this second officer, who was a full-time, certified officer, made the arrest lawful. We disagree with that conclusion, but we affirm because we reach the same result as the trial court for a different reason. Marchant v. State, 286 Ark. 24, 688 S.W.2d 744 (1985); Curtis v. State, 279 Ark. 64, 648 S.W.2d 487 (1983).

Prior to the arrest, Vealy had been assigned to patrol in the south portion of White County. Vealy testified that White County Deputy Sheriff J. B. Howard was his designated supervisor, and that he was not in radio contact with Howard at the time of the arrest, nor was Howard present at the scene of the arrest. The appellant’s argument is that Howard was thus not in “direct” supervision of Vealy as required by the statute on the authority of auxiliary police officers. The pertinent statutory provisions are as follows:

42-1405. Authority of an auxiliary law enforcement officer.
(a) An auxiliary law enforcement officer shall have the authority of a police officer as set forth by statutes of this State when the auxiliary law enforcement officer is performing an assigned duty and is under the direct supervision of a full-time certified law enforcement officer.
42-1401. Definitions.
(h) “Direct supervision” means having a designated on-duty full-time certified law enforcement officer responsible for the direction, conduct and performance of the auxiliary law enforcement officer when that auxiliary law enforcement officer is working an assigned duty, but does not mean that the full-time certified law enforcement officer must be in the physical presence of the auxiliary law enforcement officer when the auxiliary officer is working an assigned duty. . . .

It is clear from Ark. Stat. Ann. § 42-1401(h) (Supp. 1985) that Howard’s physical presence was not required to validate Vealy’s arrest of the appellant. Although the appellant argues that Vealy did not even know where Howard was at the time of the arrest, the only testimony abstracted is that of Vealy who, on cross-examination, said he knew Officer Howard was in Searcy.

The only case cited by the appellant as having dealt with the statutes quoted above is Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985). In that case we were not concerned with the evidence of supervision of the auxiliary officers because the circuit judge concluded, after a hearing on the matter, that the arrest was illegal and then proceeded to try appellant and enter a judgment of guilty. We held only that the illegal arrest invalidated the charge against the appellant. We did not even discuss the reason for the finding that the arrest was illegal.

Our holding here is that the statutes clearly do not require the physical presence of a supervising officer at the scene of an arrest made by an auxiliary officer. We also hold that in this case the appellant has failed to present to us a record showing that the auxiliary officer was not being directly supervised by Officer Howard. His only showing was that Howard was not physically present and that Vealy and Howard were not in radio contact “during the process of the arrest.”

To require that the designated supervising officer be speaking to the auxiliary officer during the arrest process would constitute an unreasonable interpretation of Ark. Stat. Ann. § 42-1405(a) (Supp. 1985). It would be unreasonable to hold that an auxiliary officer must, in any instance stop, when he observes the commission of a crime, to discuss the situation with his supervisor before proceeding with an arrest. The appellant has given us no authority or argument which would require us to adopt such an unreasonable interpretation of the statute. See Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. My disagreement with the majority is based upon our recent decision that an auxiliary officer making a misdemeanor arrest must be under the direct supervision of a law enforcement officer. See Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985). I can find no factual or legal distinction between the present case and the above case. The law has not been changed.

In the present case Deputy Howard was auxiliary Officer Vealy’s designated supervisor and was reportedly some 20 miles away. There was no contact in person, by radio or otherwise between Vealy and Howard before, during or after the arrest. Howard was not informed that the arrest had been made. He may not have been on duty at the time of the arrest. The facts of this case clearly establish that Vealy was not supervised anymore than were the officers in the Brewer case. There we held that Brewer was never legally arrested because the only charge against him was the ticket given by the unsupervised auxiliary officers. McAfee likewise received a ticket from an unsupervised auxiliary officer.

I prefer the results reached in the present case, but I feel bound by the precedent in the Brewer case. We ought to be consistent one way or the other. Whether the present law is good or bad is not for us to decide. It is up to the people, acting through the legislature, to make, repeal or amend laws.


author: David Newbern, Justice.

text:
    Benjamin WILLIAMS v. STATE of Arkansas
    CR 86-126
    720 S.W.2d 305
    Supreme Court of Arkansas
    Opinion delivered December 8, 1986

      R. W. Laster, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was convicted of two counts of delivery of a controlled substance. He argues the testimony of Charlotte Smith, the primary prosecution witness, was uncorroborated and that his motion for a directed verdict should have been granted because Smith was an accomplice and a drug addict. He contends her testimony, absent corroboration, was insufficient to sustain his conviction. We find Smith’s testimony was corroborated. He also argues his attorney was erroneously limited in cross-examination of Smith. We find no abuse of discretion in the trial judge’s ruling that the matter the attorney wished to discuss was more prejudicial than probative.

Charlotte Smith, who had been convicted of selling drugs, was enlisted by the Pulaski County Sheriff’s Department to work with officer Kerry Thomas in apprehending other drug dealers. Thomas testified that on August 8,1984, Smith and her car were searched and found to be free of drugs. Smith was given $40.00 and placed under surveillance by Thomas. She drove to the corner of Marshall Street and Wright Avenue in Little Rock and parked her car. She was first approached by an unidentified person who spoke to her briefly and then walked away. A short time later she was approached by the appellant who got in her car, stayed for a brief period, and then left. Smith drove to the sheriffs office where she gave Thomas two packets of a substance later identified as containing cocaine. Smith and the car were searched, and the $40.00 was missing.

Thomas further testified that on August 9,1984, Smith was again sent out under Thomas’s surveillance. This time when she reached the Marshall Street and Wright Avenue intersection a person, identified by Thomas as Nolan McCoy, got in Smith’s car. She then drove to Sixteenth and Wolfe Streets where two other persons got in the car. Thomas identified one of them as the appellant but was unable to identify the other. When Smith returned to the sheriffs office, she again had none of the money earlier given to her by Thomas, but she handed over two Dilaudid tablets.

Smith testified she purchased the cocaine from the appellant on the first occasion and the Dilaudid from him on the second.

1. Corroboration

The appellant contends that it was necessary for the state to corroborate Smith’s testimony for two reasons: First because she was an accomplice and corroboration is thus required by Ark. Stat. Ann. § 43-2116 (Repl. 1977), and second because she was an informer-addict and thus her testimony was so inherently unreliable that we should require corroboration of it, citing principally obiter dictum from People v. Mickelson, 32 Ill. App. 3d 813, 336 N.E. 2d 806 (1975).

We have held that a buyer of illicit drugs is not an accomplice of the seller. Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985); Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974); Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). The appellant invites us to distinguish those cases on the basis that here we have a buyer-witness who was an informer-addict rather than a buyer-witness who was a police officer or a buyer-witness who was not acting as an informer. We need not even attempt to make the distinction the appellant has suggested, nor need we consider adopting the position expressed in the Illinois case, because here there was corroboration. The testimony of officer Thomas showed clearly that the crime of delivery of a controlled substance occurred on two occasions. It also served adequately to connect the appellant with the crime in each event. Corroborating evidence need not be sufficient in itself to sustain the conviction. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. den. 440 U.S. 911 (1979). It is sufficient if, independent of the accomplice’s testimony, it tends in some degree to connect the accused with the crime. Rhodes v. State, 280 Ark. 156, 685 S.W.2d 421 (1983); Walker v. State, 277 Ark. 137, 639 S.W.2d 742 (1982). In Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982), we reversed on another point but said an accomplice’s testimony was sufficiently corroborated because the defendant was seen by other witnesses with the accomplice before and after the commission of the murder alleged in that case. One witness testified she saw the defendant and the witness running from the house where the crime was committed. We find the circumstances of the appellant’s presence with Smith in this case to be analogous to the circumstances in Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). Thomas’s testimony showed the appellant was present and acting suspiciously at the time and place the crime occurred. His testimony thus tended to connect the appellant with the commission of the crime, and when combined with Smith’s testimony, it is sufficient to sustain the conviction.

2. Cautionary instruction

In addition to the corroboration argument, the appellant contends the court should have given the jury a cautionary instruction because of the inherent unreliability of Smith’s testimony. No such instruction was requested at the trial, and the matter may not be argued for the first time on appeal. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985); Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985).

3. Restricted cross-examination

Smith testified she had only been involved with drugs for about a year. The appellant’s counsel asked her, on cross-examination, if she had not been a witness to a drug-related murder more than a year earlier. Out of the presence of the jury, after objection, the appellant’s counsel argued that showing her presence at a drug-related murder more than a year ago would legitimately attack Smith’s credibility. The court responded that she could be asked about her involvement with drugs but not about the murder because the prejudicial effect of that evidence would outweigh its probative value.

Although A.R.E. 403 was not mentioned, the court’s decision was obviously an application of that rule. The court was correct, for there was no showing that the murder had anything to do with the offense charged here or that the introduction of testimony about it would tend to prove Smith had been untruthful. See Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981). There was no abuse of the court’s discretion, especially in view of his ruling that Smith could be cross-examined generally about her relationship to drugs but not about the murder. Maxwell v. State, 284 Ark. 501, 683 S.W.2d 908 (1985).

Affirmed.


author: Per Curiam.

text:
    SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT v. Wali MUHAMMED
    719 S.W.2d 702
    Supreme Court of Arkansas
    Delivered December 8, 1986

      Wali Muhammed, for respondent.
   Per Curiam.

On July 21, 1986, this Court appointed the Honorable John B. Plegge as Master to hear the evidence in this cause, make findings on issues of fact, and make recommendations to this Court. On September 19,1986, the Master submitted his findings of fact to this Court and recommended that respondent be held in contempt. On November 14,1986, the respondent filed a response and evidentiary affidavits in this Court.

The response will be treated as an objection to the Master’s report, and this Court will review the record before accepting or rejecting the Master’s report. The evidentiary affidavits are ordered struck as the evidence was taken by the Master and will not be taken by this Court.

A copy of the record is ordered.


author: George Rose Smith, Justice.

text:
    Linda Louise SCHNEIDER v. STATE of Arkansas
    CR 86-136
    720 S.W.2d 709
    Supreme Court of Arkansas
    Opinion delivered December 15, 1986

      Honey & Rodgers, P.A., for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

This is a postconviction proceeding under Criminal Procedure Rule 37 in which the appellant seeks to withdraw her plea of guilty to charges of aggravated robbery, kidnaping, and theft. The petition alleges that the plea was not voluntary and had no factual basis. The trial court denied the petition without an evidentiary hearing, finding from the record that there was “no indication that the plea was not voluntarily and intelligently made, that the plea was entered on the advice of counsel, and that there was a sufficient factual basis for the plea.” Our jurisdiction of the appeal is fixed by Rule 29(l)(e).

Pleas of guilty are governed by Article VII of the Criminal Procedure Rules. Rule 24.7 requires that a record of the plea proceeding be made, which was done. Rule 24.4 provides that the court shall not accept a plea of guilty without addressing the defendant personally and informing her of the nature of the charge. Rule 24.6 provides that the court shall not enter judgment upon the plea without making an inquiry sufficient to establish that there is a factual basis for the plea. Rule 37.3(a) and (c) together provide that an evidentiary hearing shall be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief.

The controlling question on the present appeal is whether the record conclusively shows that the court personally informed the defendant of the nature of the charge and ascertained that there was a factual basis for the plea. Unfortunately, the record is deficient; so there should have been an evidentiary hearing.

The appellant and her husband, Michael, were jointly charged with having kidnapped and robbed one Sammy Dodson. When the plea of guilty was accepted the facts in the case were disclosed by Michael’s pretrial deposition. He testified that he and his wife Linda, the appellant, had met Dodson at a night spot, had drunk with him until closing time, and had eaten breakfast with him at a pancake house. When the three left the pancake house they drove out a highway in Dodson’s car, with Linda doing the driving at her husband’s direction. Michael testified he had a rope in his inside pocket and a pistol concealed behind him in his waistband. Michael took out the pistol and put it to Dodson’s head. Eventually Michael selected a suitable place in the woods for the robbery. He tied up Dodson with the rope. The Schneiders took the car and left. Throughout the deposition Michael implied that Linda knew nothing in advance about the possibility of a robbery and took no part in it except to drive. Michael entered a negotiated plea of guilty and received total sentences of 80 years. Linda’s negotiated plea was for three concurrent 10-year sentences, which the court imposed.

Before the plea was accepted the appellant and her lawyer signed a printed form of Plea Statement recited as conclusions that they had discussed the charges, the range of sentences, the waiver of a jury trial, and other matters that must be explained when a guilty plea is accepted. Such a plea statement may be useful at an evidentiary hearing, but it cannot satisfy the requirement that those matters be explained to the accused in open court when the acceptance of the plea is being considered.

Rule 24.4 directs that a guilty plea not be accepted without the court’s first informing the accused of, and determining that she understands, the nature of the charge. There was at best scant compliance with this Rule, the record on this point consisting only of the following questions by the court and answers by the appellant:

Q. Mrs. Schneider, are you going to plead guilty to aggravated robbery, theft of property and kidnapping?
A. Yes, your Honor.
Q. Do you understand what the State would have to do to prove you guilty of aggravated robbery?
A. Yes.
Q. Of kidnapping?
A. Yes.
Q. And of theft?
A. Yes.
Q. Are you satisfied they can do that in each case?
A. Yes.

More important, Rule 24.6 states that the court shall not enter judgment upon a plea of guilty without making such inquiry as will establish that there is a factual basis for the plea. “A factual basis” means that the accused is actually guilty. This particular inquiry is far and away the most important single phase of plea-taking. When the record of the proceeding clearly proves that the accused understood the nature of the offense and unmistakably admitted guilt, the possibility of a successful postconviction challenge to the validity of the plea is remote. Before the Rules of Criminal Procedure were adopted, we emphasized this point in discussing the A.B.A. Standards Relating to Pleas of Guilty:

Nevertheless, we must observe that compliance with the Standards will go far toward achieving the twofold purpose of (1) assuring justice both to the accused and to the public and (2) minimizing the dreary necessity of having to reconsider in postconviction proceedings points that should have been set at rest when the plea of guilty was accepted.

Byler v. State, 257 Ark. 15, 513 S.W.2d 801 (1974). No doubt the process of plea-taking week after week becomes routine to an experienced trial judge, but the accused should understand that the questions are meaningful, not mechanical.

In the case at hand the trial judge did not ask the accused even one question about her guilt. There were no inquiries such as, “Are you guilty of the offenses as they have just been explained to you? Did you assist your husband in the commission of the offenses?” In view of the record’s silence with regard to the pivotal point at issue, we cannot say that the record conclusively shows that the Rule 37 petition was properly denied without an evidentiary hearing.

The judgment is reversed and the cause remanded with directions that the accused be allowed to withdraw her plea, and for further proceedings.

Hickman, J., dissents.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Eric Boyd HOLDEN v. STATE of Arkansas
    CR 86-52
    721 S.W.2d 614
    Supreme Court of Arkansas
    Opinion delivered December 15, 1986

      Lee A. Biggs, III, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Eric Holden was convicted of first degree murder and sentenced to 35 years imprisonment. He raises four arguments for reversal. First, a mistrial should have been granted when the prosecuting attorney mentioned, in his opening statement, that Holden asked for a lawyer; second, a statement Holden made to an officer after interrogation had ceased should have been excluded; third, a rifle, some ammunition and other items seized in his bedroom at the time of his arrest should have been excluded as evidence; and fourth, there was insufficient evidence to support his conviction. We find no error and affirm the conviction.

There was no direct evidence that Holden shot and killed Penelope Turnbull on December 1, 1984, but there was strong circumstantial evidence that he fired the shot. The murder occurred during a party at the residence of Lisa and Jackie McChristian in Joy, White County, Arkansas. Turnbull was killed by someone firing a weapon from outside the house. Holden signed a statement for officers after he was arrested, but the trial court excluded it because Holden asked to talk to a lawyer and the officer continued to interrogate him. Holden did not admit firing a weapon in the statement. Holden had also been drinking and smoking marijuana that night. However, after Holden said he wanted a lawyer, he asked the officer two questions, which were held admissible by the court.

Sergeant J. R. Howard of the Arkansas State Police testified that after he warned Holden of his rights, Holden said he wanted a lawyer. Howard said he ceased the interrogation and was preparing to leave when Holden asked him: “What’s going on? Why am I here?” Howard replied that “a person has been shot out at Joy and you are a suspect in it.” Holden then said: “What’s her name?” This is the conversation the trial judge ruled admissible, finding it was a conversation initiated by the defendant after the officer had ceased questioning and was not an involuntary statement induced by the officer. Officer Howard continued the conversation and began interrogating the defendant. The written statement which resulted was excluded.

The first and second issues focus on this conversation that the trial court ruled admissible. First, the deputy prosecuting attorney mentioned the conversation in his opening statement. He said:

The defendant is arrested and he is read his Miranda rights, and during the course of those rights as they are read to him he states, I want a lawyer. So Officer Howard of the Arkansas State Police folds his papers up, and he says all right, there will be no more questions. Officer Howard stopped asking questions.

The defense immediately moved for a mistrial because the attention of the jury was focused on Holden’s invocation of his constitutional right to a lawyer. It was argued that this could lead the jury to believe the defendant was trying to hide something. The specific legal argument on appeal is that it was a comment on the defendant’s right to remain silent which can be prejudicial error. Doyle v. Ohio, 426 U.S. 610 (1976). The state argued that since the trial court had ruled the questions Holden asked admissible, the state was merely explaining to the jury what happened leading up to the conversation; otherwise, it might appear that the officer did not warn Holden of his rights, a duty of which most people are aware. The trial court considered whether telling the jury the defendant exercised his constitutional right to a lawyer might influence the jury and create a circumstance in deciding Holden’s guilt or innocence. The judge denied the mistrial motion but offered instead to give a proper cautionary instruction that the jury must not consider the fact that Holden asked for a lawyer in its consideration of guilt or innocence. The defense declined the offer and stood on its mistrial motion.

The legal issue to us is whether this was a comment on the right of a defendant to remain silent or whether it was a prejudicial comment requiring a mistrial. The leading decision on this issue is Doyle v. Ohio, supra. There, the prosecutor repeatedly asked the defendant during cross-examination why he remained silent when questioned by the authorities. The court held that the Miranda warning carries an implicit guarantee that an arrested person’s silence will not be used to impeach an explanation later offered at trial.

The situation here is not exactly the same as in Doyle. There was no direct reference by the state to the defendant’s silence or emphasis that the defendant refused to make a statement, which is the error addressed in Doyle. The state simply mentioned what was said immediately before Holden asked two questions which were admitted. One court has held that the test to be applied to such comments is whether the reference is intended or calculated to direct the jury’s attention to the defendant’s silence. People v. Morgan, 112 Ill.2d 111, 492 N.E.2d 1303 (1986). Here, it was not cross-examination emphasizing Holden’s silence to the jury. While Holden’s exercise of his constitutional right to a lawyer was mentioned, it was not a calculated reference to Holden’s silence. The appellant has cited no case holding such a statement is of such a prejudicial nature that it will prevent a fair trial.

The trial court offered to cure any possible prejudice with a curative instruction. Holden argues on appeal that an instruction could have cured the prejudice, citing Lakeside v. Oregon, 435 U.S. 333 (1978). The appellant argues that the defense took no position on the instruction, and it was the court’s duty to give the instruction on its own. This is what counsel said: “. . . for the record we renew our motion for a mistrial. We object to the proffer [the instruction the court offered to give].” The court replied that the instruction was offered for the benefit of the defense, and if the defense objected to the instruction, it would not be given.

Appellant’s attorney stated that he would prefer that the court grant a mistrial, he would take no position on the instruction and he was not waiving his right to a mistrial. He stated that the proffered instruction would not cure the error. Now the appellant argues that it could have cured the error and should have been given.

The defense had its choice and refused the offer. The defense wanted a mistrial and made it clear it would not be satisfied with the instruction offered. In Carter v. Kentucky, 450 U.S. 288 (1981), the United States Supreme Court said:

A trial judge has a powerful tool at his disposal to protect the constitutional privilege — the jury instruction — and he has an affirmative constitutional obligation to use that tool when a defendant seeks its employment. No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum (Italics supplied.)

See also James v. Kentucky, 466 U.S. 341 (1984).

First, we cannot say the court here committed error in refusing to grant a mistrial. Next, we hold the trial court was not required to give the instruction unless requested to do so by the defendant.

After the trial court’s ruling, the opening argument continued, and the state’s attorney picked up where he left off, reciting Holden’s responses and Holden’s remark “What’s her name?” No mention was made during the trial about the silence of the defendant, or the fact that he had asked for a lawyer.

The second issue is closely related to the first. It is that the statements ruled admissible were not voluntary because they were made after Holden said he wanted a lawyer and the result of interrogation by the officer. Officer Howard testified that he deliberately used the word “person” rather than the victim’s name when he said “a person was shot out at Joy . . .” The officer’s motive in framing his statement is irrelevant. The question is did he interrogate Holden. The appellant argues that the officer tricked Holden into saying “What’s her name?” and in effect interrogated Holden when the interrogation should have ceased.

The fundamental rule of applicable law was announced in Edwards v. Arizona, 451 U.S. 477 (1981); that is, once a defendant indicates he wants a lawyer, the interrogation must cease. That is a principle we have followed without exception. Futch v. State, 288 Ark. 323, 705 S.W.2d 11 (1986); Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982); State v. Branam, 275 Ark. 16, 627 S.W.2d 8 (1982). However, if a defendant or suspect initiates further conversation on his own or makes a voluntary statement, it will not be excluded as involuntary. Such a conversation cannot be the functional equivalent of interrogation. But “any statement given freely and voluntarily without any compelling influence is, of course, admissible as evidence.” Rhode Island v. Innis, 446 U.S. 291 (1980).

Was the conversation an “interrogation” by the officer? In Edwards the defendant said he wanted a lawyer and the questioning ceased. The next day the police told the defendant he had to talk and a confession was obtained. In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the defendant, having exercised his right to remain silent, later started a conversation with an officer by saying “Well, what is going to happen to me now?” That led to further conversation which ultimately resulted in a confession. Due to the lengthy “conversation,” the case was remanded to determine if the statement obtained was indeed voluntary.

We find none of these limiting factors present here. Holden asked for it. The officer was honoring his request for a lawyer, Holden asked why he was there, he was told, and he said “What’s her name?” It was a voluntary statement by him. No attempt was made to interrogate him or compel him to say anything. He volunteered both questions — they were not answers. The trial court ruled these statements admissible and was correct.

The third issue is the seizure of the gun, ammunition and other items in Holden’s bedroom. The arrest of Holden in his home without a warrant is not questioned. The police had probable cause. What happened that night is found mainly in the lengthy testimony of two Arkansas State policemen, Officer Larry Mitchell and Sergeant J. R. Howard. Both received radio calls late on December 1 to go to the McChristian residence in Joy where there had been a shooting. The officers were told that Eric Holden had shot someone. Several other officers were also present. Some approached the McChristian residence from the back door, some by the front. A storm door had to be broken to gain admittance. The victim was found lying on the floor. They heard people “screaming and hollering” and found several people in a bedroom, trying to get under the bed or hide saying that Eric Holden had shot her and was outside somewhere. According to Mitchell, the people were hysterical. Mitchell tried to find out from these people Holden’s whereabouts. He learned that Holden lived two doors away. It was dark outside. Not finding Holden, the officers approached Holden’s house, beat on the front door and called out. Getting no response, the decision was made to enter the residence. This is part of Mitchell’s testimony according to the appellant’s abstract:

This was minutes after I had left the first residence and I proceeded into the Holden residence, armed with my service revolver and my 12 gauge shotgun. Sergeant Howard was armed, I believe, with a 357 magnum Model 66, Smith and Wesson, and an AR-15. We proceeded into the house, to look for Eric Holden. Sergeant Howard, myself and Officer Denney entered. We continually announced ourselves as Arkansas State Police, and White County Deputy Sheriffs. We got no response. Then, as we were moving down the hall, through the kitchen, a voice came from this side room, ‘What’s going on out there.’ I identified myself as an Arkansas State Policeman, and told this person to come out. There was a racket that sounded to me like a bolt opening ánd closing on a weapon. The racket came from, the room where the person’s voice came from. Then there was a movement, a screech, a sound, and then there was a large thump, a loud sound, and I saw a portion of a right hand. I repeated myself, telling him ‘Eric, come out,’ calling him by his first name, ‘come out where I can see you.’
He asked me if he could turn on the lights. I told him to turn the lights on. He reached across to turn the light on, and I told him to stay right there, don’t go back in. I was pointing a weapon at him, a 12 gauge shotgun. He stopped. He kept asking, ‘What’s going on.’ I told him, bring yourself out to where I can see you.
I was continually talking to Eric Holden, and telling him to come out. He wouldn’t move past the facing of the door, and I couldn’t see his left hand, and all of a sudden he started to take a step back. I jumped forward and grabbed him by the front of the collar of his shirt, and brought him up in the room and placed him up against the wall. I did not seize any items of physical evidence.
* * * *
Our intention in going into the house was to search for Eric Holden. We went into the house and hollered. We went through the kitchen, and down a short hall. I testified that when he turned his light on, I could see a portion of his body. He was probably standing three feet to the rear of the facing of the door when he reached over and flipped the light on. Then he made a motion, and I reached in and grabbed him, and I said, ‘don’t go back in,’ meaning, don’t go back in the bedroom. At no time prior to the arrest did I go into the bedroom.
When I reached in for him, I’m sure half of my body was in the bedroom at this point. I brought him out, put him up on the wall, and, of course, I suppose at that point I was forced into the bedroom by the other officers. I had a shotgun in one hand, and him in the other. I put him up against the wall. I suppose I was all the way in the bedroom at that point. I put him up against the wall in the hall. There were two or three other officers in the hall.
He was handcuffed and taken into the kitchen, which was probably three or four feet. There was a utility hall, a washer and drier, his uncle was there in the kitchen. I believe they stood there and talked for a while. He was fighting the putting of handcuffs on, but we got them on him. You are always concerned he was going to have a gun or shoot you, even with handcuffs on. (Italics supplied.)
* * * *
At this point we had not discovered any evidence or any of the items. He was arrested and put into handcuffs and removed to the kitchen. I did not see a search warrant. The rifle came out of the bedroom that he was arrested in. It was under the bed or against the wall. Part of the evidence was visible, I believe the shells were visible.
* * * *
I went into the house with a 12 gauge shotgun after Eric Holden, instead of calling up a Judge to get a Search Warrant, because from the information that I had received from the moment the call came in, we had a woman dead, the person that did the shooting was Eric Holden, he was either outside the murder house or was in his house. I was scared. I heard the action of a rifle being opened. When I arrested him I jerked him out of the bedroom. J. R. Howard was at my back, low on the ground, and I believe Bill Denney was in the house. I don’t believe there was anybody else. I believe the uncle, along with Captain Short, was on the back porch. This is at the incident of arrest, when I jerked him out of the bedroom, the uncle and Captain Short, the uncle moved to the kitchen and Captain Short moved to assist in the cuffing of the subject. One of the officers, apparently J. R. Howard, secured the evidence at that time of that lawful arrest.
* * * *
I was scared that he might reach for a gun and do me bodily harm, which is a normal reaction. I don’t want to sound blase, I am employed by the State of Arkansas, to protect the people of the State of Arkansas. From the information I received, he shot the girl, he still had possession of the firearm, Eric Holden had to be taken where he couldn’t hurt anybody else. That was the whole reason for the whole thing.
* * * *
I don’t know if he was armed or not when I grabbed him and put him up against the wall because I couldn’t see his left hand. We did not frisk him when we had him up against the wall. We did not find any firearms on him. I didn’t personally look for firearms on his person.

Sergeant J. R. Howard was behind Mitchell and immediately entered the bedroom at the same time Mitchell handcuffed Holden. He saw the knife, some ammunition and found the rifle under the bed. His testimony was:

We didn’t go get a Search Warrant before we went in there because a woman had just been killed, and we didn’t feel like we had time. We entered the house because we felt like that was his residence, and a high probability that he was there.
We felt like it was necessary for everyone’s safety involved to check to make sure if he was or wasn’t in the house. I was not with Mitchell at the scene before going there. They had already left the first residence and were at the Holden residence when I got there.
I was going down the hall with Trooper Mitchell in the Holden residence. For a long time we didn’t observe anything. We were calling out, trying to raise someone, in a loud voice.
We were calling Eric by his first name, and to come out, but there was no response, and we were in the house. We identified ourselves as being with the State Police, and also Officer Denney was there with the Sheriffs Office. He identified himself as being with the White County Sheriffs Department, as I recall. But at some point we heard some noise in the bedroom, which was the suspect’s bedroom, and we heard him call out, and told him to come out with his hands up, him being Eric Holden. [Italics supplied.]
I believe Trooper Mitchell first laid hands on the defendant, Eric Holden. The Defendant had come out of the bedroom, and there was, I guess you call it a short hallway, and he was in that hallway.
I guess you would say Mitchell was at the kitchen end of the hall, as opposed to the bedroom.
Mitchell did not get to the bedroom end until after the suspect was in custody. We called him. He finally turned a light on. Mitchell was standing up, leaning, and looking down the hallway, and I was crouched down beside the bar in the kitchen, looking around Mitchell, but he actually placed him under arrest.
I then went in the bedroom. Before he was arrested I heard something in the bedroom. I heard some noises, I couldn’t identify them per se, except the last noise I heard was just a kind of thump right beside the door, and after the suspect was in custody, I went in the bedroom and there was a hunting knife lying—
Prior to going into the room I did not know for a fact whether or not anyone else was in there. I went in the bedroom and had occasion to see certain items in the bedroom. The first thing I observed was some high-powered rifle shells laying on the floor by the bed, and I just took note of that. I also observed a little red plastic case lying on the floor, a cartridge carrier that had some high-powered rifle shells in that. That was one of the first things I noticed, and a closer inspection showed there was a rifle under the bed. I seized the rifle. (Italics supplied.)
* * * *
I shined a light under the bed and saw it. I seized the rifle, there was a live .243 round partially in the chamber, kind of laying in the chamber. It wasn’t completely chambered. The bolt on the rifle was opened, and the cartridge was more or less laying in the area of the chamber, and so I seized that cartridge, I seized the rifle, I believe two other live rounds lying on the floor, one near the rifle was under the bed, another was on the floor. Those are unexpended cartridges that fit the rifle I am holding. I seized other items. There was a brown plastic gun case under the bed that I seized and also an Old Timer hunting knife which I found lying beside the door as you go in the bedroom. The suspect was wearing a scabbard but the knife wasn’t in one.
All I seized was the shells and the gun. The gun was a Remington Model 700, .243. The gun had a scope on it. I took custody of them right there immediately, at the same time he was being taken into custody. (Italics supplied.)
t ‡ ‡ *
I went right into the bedroom the Defendant, Eric Holden, came out of right after that. I didn’t know if anybody else was in there or not. (Italics supplied.)
* * * *
Anytime I go in the house to get a homicide suspect, I try to cover myself every way I can, and one way you do it is to make sure you get everybody in the house, and that’s why I went in there and looked.
I went to the door and didn’t see anybody. The bed was large enough that somebody could have been hiding under it. It was a full size bed, and I don’t recall how low it was. (Italics supplied.)

The trial court ruled the seizure was legal because the officers thought it was necessary to eliminate or minimize danger to themselves and others. The judge remarked on the fact that there was a reasonable possibility that someone was under the bed and that is one reason Howard looked there.

A search for or seizure of evidence in a defendant’s home without a search warrant and incidental to a legal arrest is generally governed by Chimel v. California, 395 U.S. 752 (1969), and Shipley v. California, 395 U.S. 818 (1969). In Chimel the defendant was arrested in his home, and a search of the entire home was made, including the attic, garage and workshop. The court addressed the question in broad language:

. . . When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. ...
* * * *
‘The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest.’

In Shipley the defendant was arrested outside his home and his home was searched. It was deemed unreasonable.

We must also consider the “plain view” doctrine which can be applied when four circumstances exist: (1) the policeman seizing the evidence is in a place where it is lawful to be when he sights the evidence, (2) the discovery is inadvertent, (3) the items seized must be incriminating at a glance, and (4) they must be plainly visible.

In Mincey v. Arizona, 437 U.S. 385 (1978), the United States Supreme Court said this about such seizures:

. . . when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. . . ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’.. And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities.

In Mincey the search was deemed unreasonable because all persons in the apartment had been located and a four day thorough search was conducted.

Was the trial court right? Was this seizure justified because some articles were in plain view? Was the look under the bed justified to insure the safety of the officers? Was the seizure justified? We think it was. First, we must view the facts on appeal most favorably to the appellee. Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986). Next we only overrule a trial court’s decision if it is clearly wrong. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986).

The officers here were apprehensive and not fully aware of what awaited them in the darkened house and acted quickly once they grabbed Holden. Whether Holden was two or three feet from the bedroom at the time Officer Howard searched the room should not decide the matter. What counts is whether the officers were justified in making certain no one else was in the room and no one could possibly get to a weapon.

Officer Mitchell testified he had trouble handcuffing Holden. Howard’s action, simultaneous with Mitchell’s, was perfectly natural and reasonable — the room had to be checked for weapons and people. The gun was not in the closet nor was it hidden from view. All Howard had to do was look under the bed, which he did. The fact that the gun was under the bed would not mean it was not in plain view. In the case of Texas v. Brown, 460 U.S. 730 (1983), an officer shined a flashlight into a vehicle and spotted contraband. The court held the evidence in plain view. The court said: “. . . use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.” Furthermore, the fact that the officer had to “change [his] position and bend down at an angle so [he] could see what was inside” the car is irrelevant to Fourth Amendment analysis. The court held the question of whether the plain view doctrine applied turned on the legality of the intrusion that enabled the officer to see and seize the property. In this case that would mean, did Howard have a legal right to be in the room? A strict, indeed an unreasonable, application of Chimel might reach another result. But it would indeed be unreasonable. These situations are never the same, and all factors must be considered in arriving at a decision of whether the search is reasonable.

The Fourth Amendment protects property from seizure and the right to privacy from intrusion. If the right to be at a place exists, a seizure is deemed reasonably justified under the circumstances. In Bell v. Wolfish, 441 U.S. 520 (1979), the court said:

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

In the recent case of New York v. Class, __ U.S. __, 106 S. Ct. 960 (1986), the court had this to say about such searches and seizures:

. . .When a search or seizure has as its immediate object a search for a weapon, however, we have struck the balance to allow the weighty interest in the safety of police officers to justify warrantless searches based only on a reasonable suspicion of criminal activity. (Cites omitted). Such searches are permissible despite their substantial intrusiveness.

Three factors were considered in Class in upholding the search: “[T]he safety of the officers was served by the governmental intrusion; the intrusion was minimal; and the search stemmed from some probable cause focusing suspicion on the individual affected by the search.” All three factors are involved in this case.

The appellant contends the case of Moore v. State, 261 Ark. 274 (rehearing granted p. 278), 551 S.W.2d 185 (1977), is directly on point and requires us to reverse the judge’s ruling. In Moore there was no question of security or safety involved.

The trial court was justified in upholding the search as necessary to insure the safety of the officers.

Finally, we consider the sufficiency of the evidence. The party started about 1 p.m. at the McChristian house on the afternoon of December 1, 1984. Alcohol and marijuana were being used liberally. Holden, who was drinking and smoking marijuana, had words with the hostess and made threatening remarks to others present. The victim, who had not met Holden before, flipped Holden’s hat off. He slapped her. She cried and slapped him back. This evidently caused a confrontation. Holden remarked to the two Pratt brothers, Tommy and Anthony, that he would take on both of them. He challenged to fight everyone present. He was asked to leave. Anthony Pratt said Holden said “he would kill us.” According to Tommy Pratt, Holden said he would come back and kill them.

Holden left through the back door, and ten or 15 minutes later a shot was fired from outside. Then another shot was heard. Both shots came from the back of the house. The Pratt brothers said they saw the fire from the weapon. Penny Turnbull, who was in the kitchen, was killed. A few minutes later Holden came to the back door, apparently entered the house, and said “Wow man, what happened here, man?” None saw him because they were in the bedroom hiding. But they recognized his voice. Holden left as the officers approached in their vehicles.

There is the physical evidence which was scattered over the floor of the bedroom, a knife, shells, and shell holder. A high-powered rifle, recently fired, with a cartridge partially in the chamber, was lying under the bed out of its case. There is the question by Holden, “What’s her name?” He had not met Penny Turnbull before. The only conclusion one could reach is there was substantial evidence that Holden murdered Penny Turnbull, and he had a fair trial.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the manner in which the majority opinion addresses the issues concerning the state’s opening statement and the warrantless search of appellant’s residence. The first part of this dissent is based upon the law and the facts as set out in the majority opinion. Based on my understanding of the law and precedent, I am compelled to reach a different conclusion.

During the opening statement the prosecutor made the following remarks:

The defendant is arrested and he is read his Miranda rights, and during the course of those rights as they are read to him, he states, I want a lawyer. So Officer Howard of the Arkansas State Police folds his papers up, and he says all right, there will be no more questions. Officer Howard stopped asking questions.

The court denied the appellant’s motion for a mistrial but offered to give a limiting instruction. Defense counsel rejected this offer. In my opinion the instruction would have simply called to the jury’s attention a second time the appellant’s invocation of this constitutional right. The jury could just about as easily have forgotten this statement as it could have forgotten having heard a shotgun fired during the opening statement.

The majority attempts to distinguish Doyle v. Ohio, 426 U.S. 610 (1976), with the statement that “[t]he situation here is not exactly the same as in Doyle." The distinction is nothing but an effort to evade the clear holding in Doyle. No price should be required of any person for invoking a constitutional right. The practical effect of these remarks in the opening statement was to shift the burden to the appellant to explain why he had invoked his constitutional right to an attorney. I will assume that the state’s opening statement accurately described the incident for the purposes of this opinion.

We have spoken on the issue of the defendant’s right to remain silent many times and up until now we have held that the right to remain silent can not be used against an accused. In Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974) we stated:

We are, of course, controlled by the federal requirements of the Fifth Amendment as well as our own similar constitutional and statutory provisions. Part of the requirements of the federal amendments demand that the prosecution not comment on the defendant’s failure to testify.

The Clark case was before us because the prosecuting attorney, in his opening statement, called the jury’s attention to the situation that the victim of the homicide (husband of the accused) could not be there to tell his story. The prosecutor then said to the jury, “The story then that you will have about what happened out there will come from her.” The trial court denied a motion for a mistrial. On appeal we reversed because the prosecutor’s opening statement was improper.

The exact same series of events as were before us in Clark are before us in the present case. In Clark at 661, we stated: “We have held that it is error, over defendant’s objection, to give an instruction that defendant’s failure to testify is not to be considered by the jury. [Citations omitted.] Even such a neutral comment on defendant’s silence should not be given over his objection.” The comment by the prosecutor in this case was improper and such comments should not have been permitted.

After the appellant had invoked his constitutional right to an attorney, the efforts of the police to interrogate him continued. In fact a written statement was thereafter obtained from the appellant, which statement was excluded by the trial court in the presence of the jury. No reference to a signed statement should have been made in the presence of the jury. The reference likely left the jury with the impression that it was a confession.

In Rhode Island v. Innis, 446 U.S. 291 (1980), the United States Supreme Court discussed psychological ploys calculated to initiate “voluntary” statements. The Court held that a person who has invoked his right to counsel could not be subjected to express questioning or its “functional equivalent.” The Innis opinion stated that the term “interrogation” under Miranda applies to words or actions on the part of the police that they should know are reasonably likely to elicit an incriminating response from the suspect. Supra at 299.

To compound the error, in the opening statement the prosecutor recited Holden’s remark, “What’s her name?” Officer Howard later testified that he deliberately used the word “person” rather than the victim’s name when he said, “a person was shot out at Joy.” I am in total disagreement with the statement in the majority opinion, “The officer’s motive in framing his statement is irrelevant.” I disagree. Motive in this case is very important. This statement by Officer Howard is clearly the “functional equivalent” of continuing interrogation.

I agree with the majority opinion that the fundamental rule of law enunciated in Edwards v. Arizona, 451 U.S. 477 (1981) is that once a defendant indicates he wants a lawyer, the interrogation must cease. I also agree with the majority opinion that in the past we have followed the rule without exception. One of these opinions is Futch v. State, 288 Ark. 323, 705 S.W.2d 11 (1986). In the present opinion the majority has departed from the Edwards rule.

Next, I want to discuss the matter of the warrantless search. It is very important that we know the location and the circumstances of the appellant at the time of his arrest if this search and seizure is to be justified as a search incident to an arrest. Below is some of the testimony of the officers which is included in the majority opinion.

From the testimony of Officer Mitchell:

“I proceeded into the Holden residence armed with my service revolver and my 12 gauge shotgun . . . Sgt. Howard, myself and Officer Denney entered. . . Then, as we were moving down the hall, through the kitchen, a voice came from this side room, ‘What’s going on out there?’ ” ... He was probably standing three feet to the rear of the facing of the door when he reached over and flipped the lights on . . . . At no time prior to the arrest did I go into the bedroom .... I put him up against the wall in the hall. There were 2 or 3 other officers in the hall. He was handcuffed and taken into the kitchen which was probably 3 or 4 feet. . .. At this point we had not discovered any evidence or any of the items. He was arrested and put into handcuffs and removed to the kitchen. I did not see a search warrant. The rifle came out of the bedroom that he was arrested in. It was under the bed up against the wall. Part of the evidence was visible, I believe the shells were visible

From the testimony of Officer Howard:

“The defendant had come out of the bedroom and there was, I guess you call it a short hallway and he was in that hallway. I guess you could say Mitchell was at the kitchen end of the hallway, as opposed to the bedroom. Mitchell did not get to the bedroom end until after the suspect was in custody. Mitchell was standing up, leaning, and looking down the hall and I was crouched down beside the bar in the kitchen, looking around. Mitchell, he actually placed him under arrest. . . . [A]nd after the suspect was in custody, I then went in the bedroom and there was a hunting knife lying . . . and a closer inspection showed there was a rifle under the bed. ... I shined a light under the bed and saw it. . . the bolt on the rifle was open. . ..”

Although not recited in the majority opinion, Officer Mitchell also testified:

[T]hen as we were moving down the hall through the kitchen,... I repeated myself, telling him, Eric, to come out, calling him by first name, come out so I can see you. He asked if he could turn on the light, I told him to turn the light on. He reached across to turn the light on. I could see half of his body, and he flipped the light on, and I told him to stay right there, don’t go back in. . . . “He had come out of his bedroom and there was, I guess you call it a short hallway and he was in that hallway. I guess you could say the kitchen end of the hallway as opposed to the bedroom.”

The overall testimony of the officers and the diagram in the record which was prepared by them, clearly show that the appellant was in the hallway at the time he was arrested. Officer Howard, who was following Officer Mitchell down the hallway, stated that the actual arrest took place 6 to 8 feet outside the bedroom door. In any event there is no evidence that the appellant was within the “lunge area” of the seized evidence. At the time of the search the appellant was under arrest, handcuffed, under guard by several heavily armed officers, and probably even out of the residence. A few questions and answers bearing heavily upon this decision are set out as follows:

Q: So from the time that he was arrested until the time that you walked the 6 or 8 feet to the door, there was a possibility that there might be somebody else there?
A: Yes, sir.
Q: And then when you made the determination there was not anybody else there, those exigent circumstances were gone, is that correct?
A: Yes.
Q: You weren’t afraid somebody would jump out and shoot you?
A: That is correct.
Q: [ W] as there any reason why you could not have gotten a search warrant to search that bedroom, later in time?
A: Probably not . . .
Q: So you weren’t afraid somebody was going to remove the evidence?
A: No.
Q: You were not afraid the evidence was likely to be removed or destroyed before you could get a search warrant?
A: We could have posted someone there to secure the scene.
Q: I believe the rifle was not in plain sight?
A: That is correct.
Q: It was under the bed?
A: Yes.
Q: And you had to get a light down and search and you retrieved it, is that correct?
A: That is correct.

The above is but a sample of the circumstances at the time of the search. There was clearly no danger of harm to the officers or of destruction of evidence at the time of the search and no exigent circumstances existed.

In Chimel v. California, 395 U.S. 752 (1969), it is stated:

[I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seekto use in order to resist arrest or effect his escape. . . . And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area 'within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. [Emphasis added.]

Supra at 763. Chimel goes on to hold that there is no justification for “routinely searching any room other than that in which an arrest occurs” or for searching desk drawers or other closed or concealed areas in the same room.

In Moore v. State, 261 Ark. 274, 551 S.W.2d 185 (1977), we considered a similar factual situation where the appellant was arrested in one room and the arresting officers proceeded to search in other areas of the house after the appellant was removed. There the officers found a gun and other items. In reversing and remanding on rehearing we cited Chimel v. California, supra and stated:

The officers did not have a search warrant or legal consent to search the premises. The law permits a search of the area within the immediate control of the person arrested. . . . However, a search of the rest of the house turned up a .32 pistol. We hold that only those items in Moore’s bedroom were lawfully seized and all other evidence was improperly seized.

It is clear from the facts in the present appeal that there was no evidence of weapons on the person of the appellant. There were no exigent circumstances. Therefore, the seizure of the rifle and other items were not necessary for the protection of the officers or the prevention of the destruction of evidence. I would hold that the items seized in the bedroom without a search warrant, after the suspect was in custody, were unlawfully seized and therefore inadmissible.