{ "id": 1715234, "name": "Donnie Ray FREEMAN and Susan Dianne FREEMAN v. STATE of Arkansas", "name_abbreviation": "Freeman v. State", "decision_date": "1980-02-13", "docket_number": "CA CR 79-17", "first_page": "614", "last_page": "621", "citations": [ { "type": "official", "cite": "268 Ark. 614" }, { "type": "parallel", "cite": "594 S.W.2d 858" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "338 U.S. 25", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3949489 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/us/338/0025-01" ] }, { "cite": "384 U.S. 757", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047531 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0757-01" ] }, { "cite": "412 U.S. 291", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172131 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/412/0291-01" ] }, { "cite": "262 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675892 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0401-01" ] }, { "cite": "264 Ark. 376", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668784 ], "weight": 4, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/264/0376-01" ] }, { "cite": "403 U.S. 573", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027357 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/403/0573-01" ] }, { "cite": "393 U.S. 410", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11317375 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/393/0410-01" ] }, { "cite": "378 U.S. 108", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165107 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/378/0108-01" ] } ], "analysis": { "cardinality": 532, "char_count": 10145, "ocr_confidence": 0.853, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.35473767003404444 }, "sha256": "69a5ed2498a93dc8dfa32c8fbe5218eca3355fae9547897202ace4c07e35e5b7", "simhash": "1:a22e01c840c611b7", "word_count": 1627 }, "last_updated": "2023-07-14T19:03:10.426772+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Donnie Ray FREEMAN and Susan Dianne FREEMAN v. STATE of Arkansas" ], "opinions": [ { "text": "M. Steele Hays, Judge.\nAppellants were charged with violation of the Uniform Controlled Substances Act for possession of marijuana with the intent to deliver. They were tried before a jury and convicted. Appellant Donnie Ray Freeman was found guilty of possession of marijuana with intent to deliver and received a seven year sentence. Appellant Susan Diane Freeman was found guilty only of possession of marijuana and received a sentence of one year imprisonment. From the verdict below, appellants bring this appeal.\nTheir first point for reversal is that the trial court erred in overruling appellant\u2019s motion to suppress the evidence because of an invalid search warrant. Specifically, they allege the affidavit in support of the warrant contains insufficient information and therefore, the application for the search warrant should have been denied.\nThe affidavit of Lieutenant Charles Evans stated:\nWithin the past 72 hours a confidential informant advised that a large quantity of marijuana and other controlled drugs was personally observed by the informant inside the above described residence and were being processed for sale by defendant. During this 72 hours a second confidential informant advised that in excess of five pounds of marijuana and over 200 capsules and pills was personally observed being stored inside the residence. Reliability of the second informant is established by allowing a controlled contact of the defendant by the confidential informant where conversation of the defendant was heard by the affiant clearly indicating that marijuana and controlled drugs were in the defendant\u2019s possession and were for sale.\nWe are compelled to agree with appellants that the affidavit is insufficient to support the search warrant.\nAn affidavit may be based on hearsay information and need not necessarily be based on direct personal observations of the affiant. However, in such circumstances, the affiant must show some underlying basis for the officer\u2019s belief that the informant was credible and reliable. Aguilar v. Texas, 378 U.S. 108 (1964). [See also Spinnelli v. United States, 393 U.S. 410 (1969)]. To a certain extent, the ruling in United States v. Harris, 403 U.S. 573 (1971) undercuts the requirements enunciated in Aguilar, supra. In Harris, the United States Supreme Court stated that a police officer\u2019s affidavit \u201cshould not be judged as an entry in an essay contest.\u201d As long as there is a \u201csubstantial basis\u201d for crediting the hearsay information, then it is sufficient.\nHowever, we believe that the affidavit fails even in light of the Harris case. Arkansas Rules of Criminal Procedure 13.1(b) requires that when an affidavit is based on hearsay, in whole or in part, \u201cthe affiant or witness shall set forth particular facts bearing on the informant\u2019s reliability, and shall disclose, as far as practicable, the means by which the information was obtained. In Akins v. State, 264 Ark. 376, 572 S.W. 2d 140 (1978), the Arkansas Supreme Court stated that the informant\u2019s personal observation of marijuana on the defendant\u2019s property was insufficient to establish reliability of the informant. In State v. Lechner, 262 Ark. 401, 557 S.W. 2d 195 (1977), the court stated that reliability of an informant could be established in many ways, i.e., an incriminating statement by an informant; an informant who has given information in the past which led to convictions; an informant whose reliability is established by the affiant\u2019s own personal knowledge of his credibility. Nevertheless, the court explicitly stated:\nHowever, the bare statement by a police officer that he has received information from a reliable informant is not enough to satisfy the test.\nHence, the \u201csubstantial basis\u201d requirement in Harris can not be satisfied by the informant\u2019s own personal observations alone. Akins, supra. Also, a statement by the affiant that the informant is reliable will not support the test pursuant to Lechner, supra.\nIn the instant case, the affidavit stated no underlying facts to support the credibility of either informant. Aguilar, supra. As to the first informant, an attempt to establish credibility was predicated on the informant\u2019s personal observation of the marijuana inside the defendant\u2019s residence. This recital alone is insufficient to support a valid affidavit based on hearsay. Akins, supra. The second informant\u2019s reliability was predicated again on the informant\u2019s personal observations, and by a telephone conversation between the informant and the \u201cdefendant\u201d heard by the affiant. However, an inconsistency was evident between the recital in the affidavit and the affiant\u2019s testimony at trial. At trial, the affiant, Lt. Charles Evans, testified that he heard the conversation between the informant and the defendant indicating that marijuana and a substantial amount of controlled drugs were in. the defendant\u2019s possession. Then, counsel for the defendant asked:\nQ.: Now, at that time, did you know who the defendant was?\nA.: Yes, sir, I knew the name.\nQ.: Who was It?\nA.: Don Freeman.\nQ.: But you just said you talked to a female.\nA.: I talk: I didn\u2019t talk to anyone. I listened to the conversation who they identified and they said, \u201cSusan, is Don there?\u201d And, led me to believe it would be \u2014\nQ.: The conversation on the other end was all female voice though?\nA.: Yes, sir.\nClearly, there is a distinct inconsistency between the testimony and the affidavit of Lt. Evans. The affidavit explicitly stated that the conversation was between the defendant and the informant. However, Lt. Evans\u2019s testimony indicated that the voice was not that of Don Freeman but of Susan Freeman. This inconsistency is further supported by the search warrant which gave authorization to search only the premises and the person of Don Freeman.\nArkansas Rules of Criminal Procedure, Rule 13(b) requires the affiant to set forth \u201cparticular facts bearing on the informant\u2019s reliability.\u201d We believe this inconsistency diminishes the accuracy of the affidavit, and, in light of the rule and cases requiring \u201cparticularity\u201d in an affidavit when it is based on hearsay, we hold that the affidavit was insufficient to support the search warrant.\nSince the first point of appellants requires reversal, we need not discuss the other points alleged. However, we are compelled to discuss one other issue raised by appellants because we think it is of sufficient importance to require comment.\nDuring the course of the search, the officers had a matron search the body cavity of appellant Susan Diane Freeman. This search was performed in the bathroom of appellants\u2019 home and after contraband had been seized by the officers. While the matron was conducting the search, one of the officers entered the bathroom.\nThe treatment to which this appellant was subjected was clearly an unreasonable invasion of privacy and raises a serious Fourth Amendment question as to what constitutes an unreasonable search and seizure.\nObviously, a search warrant does not give officers the authority to conduct any type of search they deem necessary while on the premises. Arkansas Rules of Criminal Procedure, Rule 12.3(b) requires that any search of a body cavity must be conducted by a physician or a licensed nurse. In the instant case, the matron who conducted the search was neither. Also, Rule 12.3 only allows the search of a body cavity in three situations:\n(1) if there is a strong probability that it will disclose things subject to seizure and related to the offense for which the individual was arrested; and\n(2) if it reasonably appears that the delay consequent upon procurement of a search warrant would probably result in the disappearance of destruction of the objects of the search; and\n(3) if it reasonably appears that the search is otherwise reasonable under the circumstances of the case, including the seriousness of the offense and the nature of the invasion of the individual\u2019s person.\nIn this case, none of these situations was present. Officers had already discovered contraband which was the object of the search warrant. Although no amphetamines or any other \u201cpills\u201d mentioned in the search warrant were ever found during the search, there was not even a suggestion, much less a strong probability, that such substances would be found in the body cavity of appellant. Also, the seriousness of the offense was minor as compared to the nature of the invasion of the individual\u2019s person. [Mrs. Freeman was convicted only of possession and was not even mentioned in the search warrant].\nWe believe this search violated Rule 12.3 of the Arkansas Rules of Criminal Procedure and was also a violation of appellant\u2019s rights guaranteed in the United States Constitution in the Fourth and Fourteenth Amendments. [See Cupp v. Murphy, 412 U.S. 291 (1973); Schmerber v. California, 384 U.S. 757 (1966). In Wolf v. Colorado, 338 U.S. 25 (1948), the United States Supreme Court stated that the \u201csecurity of one\u2019s privacy against arbitrary intrusion by the police\u201d was \u201cat the core of the Fourth Amendment.\u201d In Schmerber, supra, the Court elaborated on this point:\nThe interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.\nViewing all the facts and circumstances in the light most favorable to the state, we nevertheless find that this search was an unreasonable invasion of privacy which cannot be sanctioned. This type of search should only be allowed in compelling circumstances, and when it is allowed, strict adherence to Rule 12.3 should be required.\nReversed and remanded.", "type": "majority", "author": "M. Steele Hays, Judge." } ], "attorneys": [ "R.A. Schneider, for appellants.", "Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Donnie Ray FREEMAN and Susan Dianne FREEMAN v. STATE of Arkansas\nCA CR 79-17\n594 S.W. 2d 858\nCourt of Appeals of Arkansas\nOpinion delivered February 13, 1980\nReleased for publication March 5, 1980\nR.A. Schneider, for appellants.\nSteve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee." }, "file_name": "0614-01", "first_page_order": 650, "last_page_order": 657 }