{ "id": 8723220, "name": "STATE of Arkansas v. Norflet HAMZY, Ralph M. KUYKENDALL, and Dana Keith KUYKENDALL", "name_abbreviation": "State v. Hamzy", "decision_date": "1986-04-21", "docket_number": "CR 85-219", "first_page": "561", "last_page": "566", "citations": [ { "type": "official", "cite": "288 Ark. 561" }, { "type": "parallel", "cite": "709 S.W.2d 397" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "442 U.S. 735", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1532082 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0735-01" ] }, { "cite": "265 U.S. 57", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6137218 ], "year": 1924, "pin_cites": [ { "page": "58-59" } ], "opinion_index": 0, "case_paths": [ "/us/265/0057-01" ] }, { "cite": "274 U.S. 559", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 81148 ], "year": 1921, "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/us/274/0559-01" ] }, { "cite": "385 U.S. 206", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11336196 ], "year": 1966, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/us/385/0206-01" ] }, { "cite": "394 U.S. 165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169225 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/394/0165-01" ] }, { "cite": "447 U.S. 727", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189085 ], "year": 1980, "pin_cites": [ { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/us/447/0727-01" ] }, { "cite": "428 U.S. 465", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178753 ], "year": 1976, "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/us/428/0465-01" ] }, { "cite": "435 U.S. 268", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2578 ], "year": 1978, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/us/435/0268-01" ] }, { "cite": "439 U.S. 128", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11329017 ], "weight": 6, "year": 1978, "pin_cites": [ { "page": "134" }, { "page": "137" }, { "page": "140" }, { "page": "133-140, 143" } ], "opinion_index": 0, "case_paths": [ "/us/439/0128-01" ] }, { "cite": "268 Ark. 687", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715266 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0687-01" ] } ], "analysis": { "cardinality": 496, "char_count": 8302, "ocr_confidence": 0.907, "pagerank": { "raw": 2.2774230278452116e-07, "percentile": 0.7844283585645341 }, "sha256": "61126bf6a985f766d3ccbb6ecefac13dfea507ca2204de3f5f639d69c99ca92b", "simhash": "1:b14e8851e0db0f5c", "word_count": 1340 }, "last_updated": "2023-07-14T22:45:27.788923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Purtle, J., not participating." ], "parties": [ "STATE of Arkansas v. Norflet HAMZY, Ralph M. KUYKENDALL, and Dana Keith KUYKENDALL" ], "opinions": [ { "text": "Robert H. Dudley, Justice.\nAppellees, Norflet Hamzy, Ralph Kuykendall, and Dana Kuykendall stand charged with keeping a gambling house. The police obtained telephone company records, relating to appellees\u2019 telephone activities, by use of a prosecuting attorney\u2019s subpoena rather than by use of a search warrant. With the information so gained, the police secured search warrants for the homes of two of the appellees and there seized gambling paraphernalia. The appellees filed a motion to suppress the evidence. The trial court granted the motion. The State filed this interlocutory appeal under Ark. Sup. Ct. R. 29(1)(k) and A.R.Cr.P. Rule 36.10. We reverse.\nA confidential informant reported to the Little Rock police that a wager could be placed by calling a certain telephone number. For three days the police monitored the informant\u2019s calls to the number and verified that bets could be made by calling the number. The police apparently did not know the names of all of the appellees and did not know the address of the person or persons who held the number. A deputy prosecutor issued a prosecutor\u2019s subpoena directing the telephone company to produce records and information concerning the number. The subpoena commanded that the information be produced for an investigation conducted by the Little Rock Police Department.\nAt trial, the appellees made a very narrow suppression argument. They only argued that the Fourth Amendment was violated by an unauthorized search. They contended that the prosecuting attorney\u2019s office abused its subpoena power by authorizing the police to seize evidence. The trial court was unquestionably correct in holding that the seizure was unlawful on that basis.\nThe police do not have the power to issue subpoenas. A prosecutor does have the power to issue subpoenas. Ark. Stat. Ann. \u00a743-801 (Repl. 1977). The prosecutor\u2019s power to subpoena, however, must be used only for a prosecutor\u2019s investigation. Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ark. App. 1980). Here, the prosecutor abused his power to subpoena when he commanded that records be produced for the police. Such a misuse of the subpoena power effectively gave the subpoena power to the police. Clearly, the information from the telephone company was unlawfully seized. That information, in turn, was used to obtain warrants for the search of two of appellees\u2019 homes where the gambling paraphernalia were seized. The appellees successfully argued below that the evidence should be suppressed because of the unlawful seizure from the telephone company.\nNeither the Supreme Court of the United States nor this court has ever held that unlawfully seized evidence is inadmissible against all persons, or in all proceedings. See, e.g., Rakas v. Illinois, 439 U.S. 128, 134 (1978); United States v. Ceccolini, 435 U.S. 268, 275 (1978); Stone v. Powell, 428 U.S. 465, 486 (1976). The reason is \u201ceach time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected.\u201d Rakas v. Illinois, 439 U.S. 128, 137 (1978).\nThe State argues that these appellees do not have standing to question the unlawful seizure from the telephone company, and therefore, the exclusionary rule should not be applied in this proceeding. The doctrine of standing to invoke the Fourth Amendment exclusionary rule has now evolved to focus on a defendant\u2019s substantive Fourth Amendment rights. Id., at 140. Under this test a court should not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant\u2019s own constitutional rights, and his rights are violated only if the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. United States v. Payner, 447 U.S. 727, 731 (1980); Rakas v. Illinois, 439 U.S. 128, 133-140, 143 (1978).\nThe unlawfully seized evidence should not be suppressed unless the appellees had a legitimate expectation of privacy in the evidence. The concept of a legitimate expectation of privacy is set out in Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978):\nObviously, however, a \u201clegitimate\u201d expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as \u201clegitimate.\u201d His presence, in the words of Jones, 362 U.S., at 267, is \u201cwrongful\u201d; his expectation is not \u201cone that society is prepared to recognize as \u2018reasonable.\u2019 \u201d Katz v. United States, 389 U.S., at 361 (Harlan, J., concurring). And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary-rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest. These ideas were rejected both in Jones, supra, and Katz, supra. But by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment. No better demonstration of this proposition exists than the decision in Alderman v. United States, 394 U.S. 165 (1969), where the Court held that an individual\u2019s property interest in his own home was so great as to allow him to object to electronic surveillance of conversations emanating from his home, even though he himself was not a party to the conversations. On the other hand, even a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon. See Katz, supra, at 351; Lewis v. United States, 385 U.S. 206, 210 (1966); United States v. Lee, 274 U.S. 559, 563 (1921); Hester v. United States, 265 U.S. 57, 58-59 (1924).\nThe proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. Rakas v. Illinois, 439 U.S. 128, 130-131 n.1 (1978). In the case at bar, the deputy prosecutor argued that the appellees lacked standing to challenge the search because they did not have \u201ca justifiable, reasonable or legitimate expectation of privacy in the records of the telephone company.\u201d The deputy prosecutor\u2019s argument gave appellees notice that they were to put on proof concerning the issue of a legitimate expectation of privacy in the records of the telephone company. They offered no evidence whatsoever on the issue. Because of their failure to offer any proof on the issue, we must assume, for purposes of our review, that petitioners had no legitimate expectation of privacy in the telephone records. See Smith v. Maryland, 442 U.S. 735 (1979). The appellees have not shown that their own constitutional rights were violated in the unlawful seizure, and the resulting evidence should not be suppressed. Accordingly, we reverse and remand with instructions to deny the motion to suppress.\nReversed.\nPurtle, J., not participating.", "type": "majority", "author": "Robert H. Dudley, Justice." } ], "attorneys": [ "Steve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellant.", "Omar Greene and R. W. Laster, for appellees." ], "corrections": "", "head_matter": "STATE of Arkansas v. Norflet HAMZY, Ralph M. KUYKENDALL, and Dana Keith KUYKENDALL\nCR 85-219\n709 S.W.2d 397\nSupreme Court of Arkansas\nOpinion delivered April 21, 1986\n[Rehearing denied May 27, 1986.]\nSteve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellant.\nOmar Greene and R. W. Laster, for appellees.\nPurtle, J., not participating." }, "file_name": "0561-01", "first_page_order": 599, "last_page_order": 604 }