¶1concurring in part, dissenting in part. It is extremely hard to have any sympathy for a “dope peddler.” That is not what is involved here. The very foundation of this nation rests upon the theory of equality before the law. This theory has been engraved in our constitutions. Constitution of the United States, Amendment Fourteen; Constitution of Arkansas, Art. 2, §§ 2 and 3. The principle was stated in our constitution of 1868, which became effective before the Fourteenth Amendment to the United States Constitution was declared to have been ratified. If equality before the law is to be meaningful, or actually if it is to be preserved, the “dope peddler” must be afforded the same constitutional protections available to citizens in the highest and most respected positions. Otherwise, erosion will wash the principle away, just as it will eventually wash away the hardest stone.
¶2A basic constitutional right is the right to be free from unreasonable searches and seizures. Constitution of the United States, Amendment Four; Constitution of Arkansas, Art. 2, § 15. The provisions are stated in identical language, i.e., “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, . . .” It is notable that the right is not restricted to some people or to law-abiding people. It is also significant that all people, including law violators, have the same right to be secure in their effects as they have in their persons and in their homes. See State v. Porter, 53 Ohio Misc. 25, 373 N.E.2d 1296 (1977). Donna Sue Daigger had the right to be secure in her person and effects against an unreasonable search. And the Fourth Amendment protection is broad enough to afford protection to contraband. United States v. Peisner, 311 F.2d 94, 5 ALR 3d 1196 (4 Cir., 1962).
¶3There is a rebuttable presumption that a search without a warrant is an unreasonable search. Sanders v. State, 262 Ark. 595, 559 S.W.2d 704, aff'd. sub nom. Arkansas v. State, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235. The burden is upon the state to show that a search without a warrant was reasonable. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304; Asher v. City of Little Rock, 248 Ark. 96, 449 S.W.2d 933. This means that the state must show by a preponderance of the evidence that the facts and circumstances surrounding the search brought it within the scope of a recognized exception to the requirement of a warrant for a search or seizure. See Rowland v. State, supra. The majority seeks to justify this search as a lawful search incident to an arrest, equating it with an automobile search. It was not an automobile search. The only question before us is the validity of the search of Donna Sue Daigger’s purse. Sanders v. State, supra. In Sanders, we said:
To paraphrase the United States Supreme Court’s observation in United States v. Chadwick, [433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977)] supra, the factors which diminish the privacy aspects of an automobile do not apply to appellant’s suitcase. Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person’s expectations of privacy in personal luggage are substantially greater than in an automobile.
Nor does the suitcase’s mobility justify dispensing with the added protections of the Warrant Clause. Once the Little Rock police had seized appellant’s suitcase from the trunk of the taxicab and had the suitcase under their exclusive control, there was not the slightest danger that the suitcase or its contents could have been removed before a valid search warrant could be obtained. The initial seizure of appellant’s suitcase, the validity of which appellant does not contest, was sufficient to guard against any risk that evidence might be lost. With the suitcase safely immobolized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant.
¶4Detectives Sylvester and Hutchinson stopped the Daigger vehicle, at the behest of Detective Fulks, at or near the Crestwood Apartments in Little Rock. Although there was some pretense of arresting Fulks and Detective Lowery, they were present at the scene of the arrest. The vehicle was a van. Sylvester searched both Daiggers. In searching the vehicle, Sylvester found Mrs. Daigger’s pocketbook or wallet. It was lying on the console between the driver’s seat and the passenger’s seat. He took some money, the serial numbers of which corresponded with that used by Fulks and Lowery in making the purchase from the Daiggers. He took some LSD from the wallet. According to Sylvester, the Daiggers “were clearly under police control” at the time he searched the van. There was simply no evidence of any exigent circumstances.
¶5Neither the existence of probable cause nor the reasonableness of the search itself is a substitute for a warrant where a reasonable expectation of privacy is invaded by the search, at least in the absence of exigent circumstances. Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235. See also, Freeman v. State, 258 Ark. 617, 527 S.W.2d 909. The basic and essential purpose of the requirement of a search warrant is to protect the individual against unreasonable governmental intrusions into his privacy, whenever and wherever his expectation of privacy is legitimate. Hosto v. Brickell, 265 Ark. 147, 577 S.W.2d 401. One of the most important factors to be considered in determining the reasonableness of a search is the existence, extent and legitimacy of the citizen’s right to privacy under the circumstances. Hosto v. Brickell, supra.
¶6We have recognized Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685, rehearing denied, 396 U.S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969), as the leading guideline provided by the United States Supreme Court on the permissible scope of a search incident to a lawful arrest. See Steel v. State, 248 Ark. 159, 450 S.W.2d 545. According to that guideline, the search incident to a lawful arrest cannot go beyond that area from which the arrested persons might have obtained a weapon or destructible evidence. Freeman v. State, 258 Ark. 617, 527 S.W.2d 909, Steel v. State, supra; Moore v. State, 261 Ark. 274, 551 S.W.2d 185. In Shingleton v. State, 39 Md. App. 527, 387 A. 2d 1134 (1978), a case strikingly similar to both this case and Sanders, the Maryland court put the impact of United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) in proper perspective. That court said:
When the van was stopped by the police, the occupants were removed from the vehicle and placed under arrest. A quick warrantless search was conducted on the spot. The State Police discovered the briefcase and opened it. As we read Chadwick, the contents of the brief case were protected by the cloak of the Fourth Amendment. Plainly, a briefcase is more like luggage, about which Chadwick holds that one has a right of expectation of privacy, than like a motor vehicle, a highly mobile object, usually open to view and in which one may reasonably expect less privacy. Moreover, there is no testimony of any emergency requiring the warrantless search of the briefcase. The officers did not express any fear or apprehension over weapons or explosives. The only remaining justification for the intrusion into the briefcase was the possibility that the contents would be destroyed by the two (2) appellants who were arrested at the scene. Those two (2), Martin and Shingleton, were in custody and, inferentially, unable or incapable of destroying the briefcase’s contents. The sum and substance of the facts being that, in this case, no justification existed for the warrantless search of the briefcase. Chadwick v. United States, supra; Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964).
We are mindful of a number of cases seeming to justify such a search as that present in this matter on the theorem of search incident to an arrest. Cady v. Dumbrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Chambers v. Maroney, supra; Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). See also Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Mobley v. State, 270 Md. 76, 310 A.2d 803 (1973), aff'd. King v. State, 16 Md. App. 546, 298 A.2d 446 (1973). The rationale for upholding warrantless searches made incident to arrest is the safeguarding of the arresting officers or preventing the loss of evidence. That proposition evaporates in view of the separation of the briefcase from the arrestees. Because, in the case sub judice, the clear and present danger to the police and the likelihood of destruction of the evidence were dispelled by the separation of the appellants, Martin and Shingleton, from the van and, obviously, from the briefcase, there was no need for a warrantless search of the briefcase. United States v. Chadwick, supra; Preston v. United States, supra.
Under the circumstances of this case, the police should have obtained a search warrant before opening and searching the briefcase, and the trial court erred in admitting the contents of the case into evidence.
Although there was ample authority, as Mr. Justice Blackmun observed in his dissent in Chadwick, for the position that a briefcase in a car may be searched as part of the “automobile exception” expounded by Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); see e.g., United States v. Tramunti, 513 F.2d 1087 (2d Cir. 1975) (suitcase in back seat of a car); United States v. Issod, 508 F.2d 990 (7th Cir. 1974), cert. denied, 421 U.S. 916, 95 S. Ct. 1578, 43 L. Ed. 2d 783 (1975) (trunk in railroad station); United States v. Soriano, 497 F. 2d 147 (5th Cir. 1974) (en banc) (suitcases in trunk of taxicab); United States v. Evans, 481 F.2d 990 (9th Cir. 1973) (footlocker in trunk of automobile), nevertheless, to the extent those cases conflict with Chadwick, they are implicitly laid to rest. The law is now clear that the police, having gained “exclusive control” of the briefcase and eliminated by space and time any possibility of the arrestee’s “gaining] access to the property to seize a weapon or destroy evidence,” may not then conduct a warrantless search of that property under the guise of a search incident to the arrest. United States v. Chadwick, 433 U.S. at 15, 97 S. Ct. at 2485, 53 L. Ed. 2d at 551; Preston v. United States, supra. Hence, the briefcase and its contents should have been suppressed and it is reversible error for the trial judge not to have excluded that illegally seized evidence.
¶7This case is virtually identical to Sanders v. Arkansas, supra, aff'd. as Arkansas v. Sanders, supra, in that the police were in control of the automobile and its occupants and there was no danger that the pocketbook (rather than suitcase) or its contents would be rendered unavailable to due legal process. Here, as there, the police were justified in stopping the automobile, searching it and seizing the pocketbook. The question here, as there, was whether the police, rather than searching the pocketbook without a warrant, should have taken it to the police station, where they were taking the persons arrested anyway, and there obtained a warrant to search it. The pocketbook was in the exclusive control of the police. Its mobility was destroyed by its seizure. The appellants had only a slightly better chance of retrieving the pocketbook and destroying the incriminating evidence than any member of this court did.
¶8Any person who has ever observed or participated in the emptying of a pocketbook could not escape the conclusion that the expectation of privacy in that personal effect was very great indeed. In Sanders, the United States Supreme Court had this to say on the subject:
Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar’s tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. …
¶9We have heretofore recognized that there are containers in which the owner does not have an expectation of privacy when we held that a toolbox was one, because it is not a repository of personal effects. Wyss v. State, 262 Ark. 502, 558 S.W.2d 141. There is a lot of difference between a toolbox and a pocketbook. It seems to me that one would expect more privacy in his pocketbook than in either his luggage or his toolbox. Certainly a pocketbook is a repository of personal effects.
¶10I distinguish the circumstances here from those in Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571. Ruth Sumlin had effected a jailbreak at 10:00 p.m. one evening, forcing a jailer to release five prisoners, among which was her husband, at the point of two weapons, a pistol and a knife. Thus, it was known that she was armed. She later fired a weapon at two of the escapees who had left the jail with her and her husband. She surrendered to the police by leaving the automobile her husband was driving and running to a police car. Her purse was seized at the time of her arrest and taken to the jail where she was held. Both the policeman arresting Ruth Sumlin and the Chief of the Fordyce Police in whose custody she was placed, looked in the purse for weapons. Sheriff Joe Pennington, to whose custody she was transferred early in the morning after the escape, properly inventoried the contents of the purse. He found a knife, the murder victim’s billfold and an incriminating letter. The knife had apparently been found by the police officers who first looked into the purse, and it was readily visible and its presence known. The sheriff opened the letter in order to try to get information concerning the whereabouts of the other escapees.
¶11The lone police officer who made the arrest there did not have control of the situation as the police did here. As a matter of fact, Ruth Sumlin’s husband tried to escape after the vehicle he was driving had been stopped by the police officer. He rammed the policeman’s, car with the stolen automobile he was driving and had to be subdued. The officer’s opening the purse to search for weapons was, under the circumstances, an act of wisdom and justified as incident to the arrest. It must be remembered that three of the escapees were unaccounted for after the Sumlins had been arrested. A search of the purse for weapons at the Fordyce jail where she was taken was proper, even if the chief of police did not make an inventory. The sheriff was much concerned about the whereabouts of the other escapees and was justified in considering the situation as an emergency. When the circumstances of the arrest, the taking of custody at places of incarceration, the propriety of an inventory by the sheriff and the exigencies of the situation are considered, the search of the purse there was justified. None of these conditions existed in this case.
¶12I would reverse the judgment as to Donna Sue Daigger, but I agree that the judgment should be affirmed as to Daniel Albert Daigger and reversed as to Taylor.
¶13I am authorized to state that Mr. Justice Mays joins in this opinion.