¶1dissenting. I do not agree with the majority opinion in this case. I reach my conclusions from a re-examination of Article 2, § 15 of the Constitution, in the light of the facts in the case before us, rather than in the light of our previous decisions on different facts. Section 15 of Article 2 is as follows:
"Unreasonable searches and seizures. The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.”
¶2It appears to me that the word "unreasonable” and the phrase “probable cause” have almost been interpreted out of § 15 of Article 2, while strict construction of the phrase "particularly describing” has been overemphasized. I feel that the trend in judicial decisions on searches and seizures is bearing us far from constitutional boundaries; so far in fact, that we are losing sight of the intents and purposes of § 15 of Article 2, and I feel that the majority opinion in this case is a good example.
¶3There is no question that Perez had a right to be secure in his person, house (apartment), papers and effects (even including the illicit drugs) against unreasonable search and seizure. I am of the opinion that the search was not unreasonable in this case and the majority does not say that it was. I am of the opinion that the warrant was issued upon probable cause and the majority does not say it was not. I am also of the opinion that the warrant particularly described the place to be searched and the person or things to be seized with sufficient clarity, but the majority say that it did not. So, for that reason, the majority hold that the contraband drugs (already packaged and marked for quick sale) could not be used in evidence because they were seized under a warrant that only directed the officers to an apartment building and the apartment occupied by Jack Eaton.
¶4The majority say that the warrant vested the officers with selective discretion. I do not agree. The officers had no discretion to search any apartment other than the one occupied by Jack Eaton, and they searched no apartment other than the one occupied by the man they recognized, by previous description, as Jack Eaton. Under the majority opinion, if the warrant had named Perez, the appellant could have sent the officers back for another warrant, while he disposed of the contraband, by simply saying “my name is not Perez.”
¶5It is at this point in the procedure where the facts in the case at bar become important, and it is at this point where I still adhere to the common sense doctrine we announced in Easley v. State, 249 Ark. 405, 459 S. W. 2d 410. The majority recognize the doctrine we applied in Easley but, in my opinion, they fail to follow it in the case at bar.
¶6There is no question that the drugs were found and seized in the apartment occupied by the appellant who had registered and occupied apartment No. 6 as Juan Ernest Perez. It is also obvious that Eaton, or Perez, was using two names for different purposes. The police officers had a description of the appellant under the name of Eaton, along with the name and location of the small apartment building where he was staying, as well as a detailed description of the automobile he was driving and the illicit drugs he possessed. They observed Eaton, or Perez, as the man described to them, drive up to the building and enter an apartment. The officers went to the apartment building and while some of the officers inquired of the manager as to which apartment was occupied by Eaton, two other officers who had the search warrant in their possession, went directly to the door of the apartment previously entered by the appellant and although the occupant then said his name was Perez, they searched the apartment, found the drugs and arrested the appellant. The trial court accepted the drugs in evidence but this evidence is rejected by the majority of this court because the search warrant did not describe the premises to be searched.
¶7The majority indicate that the search would have been valid and the evidence admissible if Perez had been named in the warrant instead of Eaton, or if apartment “No. 6” had been specifically designated in the warrant, or if the apartment had been rented in the name of Eaton rather than Perez.
¶8As I view the majority opinion, the object of the law is defeated by interpreting Article 2, § 15, as protecting the appellant’s apartment and the drugs against reasonable search and seizure, rather than protecting his •apartment, papers and effects against unreasonable searches and seizures. Certainly, if the police officers had barged into the wrong apartment not designated in the warrant, and had found contraband and arrested whomever they might have found in possession, the evidence thus obtained could not, and should not, be used in evidence against such person. It is that kind of search and seizure § 15 of Article 2 is security against. That is not what happened in this case. In this case the officers searched, and they only searched, the apartment occupied by the man they knew as Eaton, but who also goes by the name “Perez.”
¶9Regardless of past decisions, I am unable to concede that § 15 of Article 2 of the Constitution of this State permits a dope peddler to safely pursue his trade with impunity by simply renting an apartment for his base of operation under one name, removing the number from his apartment door as protection against a valid search warrant; then go into the street under another name and sell his packaged misery to all who are too young to know or too “hooked” to care.
¶10I prefer to follow the constitution as I interpret it through the common sense approach announced in Easley v. State, supra.
¶11I would affirm.