¶1dissenting. I respectfully dissent from that portion of the majority opinion which concludes that evidence based upon seizure of the weapon involved should have been suppressed.
¶2The uncontradicted facts show that the weapon was not described either in the search warrant or the affidavit. The defendant refused to sign a consent to search form and stated as his reason for this refusal the fact that there was a gun in the trunk. The defendant had been observed removing hubcaps from vehicles and placing them in the trunk of his car. Pie was arrested on a charge of theft of property and a search warrant was issued some hours later which described the hubcaps which were the object of the search. Rule 13.2 of Arkansas Rules of Criminal Procedure, provides in pertinent part:
. . (b) the warrant shall state, or describe with particularity; (iv) the persons or things constituting the object of the search and authorized to be seized; and . . .”
¶3The question of whether a search warrant was required at all under Rule 12.1 (d) is not before us, but it certainly could be argued that since the defendant had been arrested for theft of property the officers could have searched the property of the defendant without a warrant to obtain evidence of the commission of the offense for which he was arrested, specifically the theft of the hubcaps. Rule 13.3 (c) of the Arkansas Rules of Criminal Procedure provides in part that where in the course of a search under a warrant things are discovered which are not specified in the warrant, but which the officer believes to be subject to seizure, they may also be taken into possession.
¶4The majority cites Gatlin v. State, 262 Ark. 485, 559 S.W. 2d 12 for the proposition that Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 564 (1971), holds that the plain view rule applies only where the initial intrusion resulting in the plain view discovery was lawful, where the discovery was inadvertent, and where the incriminating nature of the object was immediately apparent. The only factor not established here was whether or not the discovery of the weapon was “inadvertent.” It is argued, and the majority holds, that defendant’s refusal to consent to a search because of the presence of a gun in the trunk was enough to trigger a requirement that the officers list the weapon in the affidavit for a search warrant. Under the rule stated in Gatlin and Coolidge, supra, it is obvious that had- the statement of the defendant not been made, there would be no problem in seizure of the weapon found in the trunk of the vehicle as that clearly would have been inadvertent. I fail to see the logic which results from the majority holding. Where the officers had no knowledge whatsoever about the existence of the gun the gun would not be suppressed, but where defendant mentioned its existence, it must be excluded, even though the gun clearly was not the object of the search.
¶5In my view, the purpose of the plain view doctrine as espoused in Coolidge and Gatlin is to establish requirements for the admissibility of evidence where its incriminating nature is apparent and where discovery is inadvertent. The requirement in the cited case which related to the lawfulness of the initial intrusion is not in my opinion applicable here, since I believe those cases to stand for the proposition that the intrusion referred to is not an intrusion under a search warrant, but another lawful intrusion into the private property of a defendant.
¶6For the reasons stated I must respectfully dissent and would affirm the judgment of the trial court as to the charge of unlawful possession of a firearm.