¶1dissenting. By direction of the Washington County Sheriff two deputies “picked up” the appellant at her home, took her to the sheriff’s office, and questioned her about the murder. Appellant responded, incriminating herself; she was then advised of her right to remain silent as required by Miranda v. Arizona, 384 U.S. 436 (1966); afterwards, she made other incriminating statements.
¶2At the time she was “picked up” from her home, she was one of two prime suspects in the murder. Evidence that this “pick up” was, in effect, an arrest can be garnered from the failure of the deputies to advise her that she was not required to accompany them. Such a statement is required by Rule 2.3, Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977).
¶3It is clear from these facts that this was a custodial interrogation to which Miranda was intended to apply. Miranda warnings should have been given at the beginning of the interrogation rather than after an incriminating question had been asked and answered. The admission in evidence of this statement was prejudicial error. This case should be reversed and remanded.
¶4dissenting. The majority correctly states the body of Mrs. Jeannie Hunt was found in the kitchen of her Fayetteville home on Saturday, October 25, 1980. It was determined that she died about 8:30 or 9:00 p.m. on the previous evening. Since appellant was not taken into custody until about 7:30 p.m. on October 26, it was already known by the officers that the death had occurred at the time stated above.
¶5Sheriff Herb Marshall was in charge of the investigation, and he stated: “It had to be one of two people.” The two people he referred to were the appellant and Ben Hunt, the husband of the deceased. The majority opinion at one point states: “Appellant had not been singled out as a suspect.” This is simply incorrect in light of Sheriff Marshall’s testimony recalling a conversation with appellant in which he said, “It is either you or Ben Hunt.”
¶6With the background information the officers possessed there was no excuse for not giving the appellant her warnings prior to the commencement of interrogation. Instead, the officers very skillfully asked her a few perfunctory questions and then came down to the heart of the case. After they had determined that she had been at Jeannie Hunt’s house about the time of the murder they then decided to give her her warnings. The only thing the officers needed to know to determine the identity of the murderer was who was present at the victim’s home at about 8:30 p.m. on Friday night. Having found out the appellant was this person they then proceeded to warn her. This is shutting the barn door after the horse is out.
¶7It is ironic that the majority cites but two sources of the law upon which to base its opinion in regard to the questions raised by the custodial interrogation; those being Miranda v. Arizona, 384 U.S. 436 (1966), Escobedo v. Illinois, 378 U.S. 478 (1964). Both Miranda and Escobedo have held that a person has certain rights originating in that source of highest authority, the United States Constitution and the Bill of Rights. There is no justifiable way that the appellant’s rights under the Fourth and Fifth Amendments have been protected despite the majority’s apologia to that effect.
¶8The exclusionary rule was first articulated in the case of Weeks v. United States, 232 U.S. 383 (1914). The United States Supreme Court found that evidence was obtained through a warrantless search and thereby declared it illegal. The court stated that if the evidence were accepted it “would be to affirm by judicial decision a manifest neglect, if notan open defiance, of prohibitions of the Constitution.” The court reasoned that judicial integrity demanded that the courts not act as accomplices to violators of the constitution. The court developed this rule further in the case of Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). In Silverthorne the government had used an illegal search to gain information upon which to base an indictment and to subpoena incriminating documents. In following the reasoning in the Weeks case Justice Holmes, speaking for the court, stated:
. . . The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all.
¶9The doctrine culminated in the case of Nardone v. United States, 308 U.S. 338 (1939), wherein it was held that information acquired by such unconstitutional means were “fruits of the poisonous tree” and could not be used as evidence in a criminal prosecution. Justice Holmes stated in Silverthorne that without the exclusionary rule the Fourth Amendment becomes a mere form of words. Justice Brandéis stated in his dissent in Olmstead v. United States, 277 U.S. 438 (1928): “ ... If the court allows mistaken ideas of the requirements of the Constitution to pass muster, it will teach ignorance of the Constitution ...” Therefore, if we allow illegal procedures, through ignorance or by design, to erode our processes, judicial integrity itself will be sacrificed in order to meet the needs of expediency. Justice Brandéis’ Olmstead dissent was later afforded due deference by the court’s specific overruling of Olmstead in Katz v. United States, 389 U.S. 347 (1967). Although the exclusionary rule originally applied only to the United States government, it was extended to the states through the Fourteenth Amendment to the United States Constitution in the case of Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp the court stated that experience had determined that the exclusionary rule was the only effective means of deterring police misconduct in their zeal to apprehend criminals. It is abundantly clear in this case that the exclusionary rule, as previously discussed, would apply to violations of both Fourth and Fifth Amendment rights.
¶10Regardless of the manner in which the majority sets forth the facts and the law in the present case, it is obvious that the appellant was one of only two suspects in this murder case. This was fully known by the officers when they first questioned her. The warnings should have been given prior to the questioning. Miranda v. Arizona, supra. Therefore, all the talk about insisting upon her calling an attorney and reading her rights three or four times to her is an after the fact attempt to cover up the fatal error in this case. Even a guilty person is entitled to a fair trial. This is all the state or the defendant is entitled to.
¶11In the case of Hayes v. State, 269 Ark. 47,598 S. W. 2d 91 (1980), the facts show that the police went to Hayes’ house as a starting point in their investigation of a murder that had occurred a short time previously. They knew that the deceased had been living with Hayes. He voluntarily accompanied them to the police department, then gave conflicting stories about when and where he last saw the victim. At that point the police decided he was a possible suspect and he was given his Miranda warnings. In the present case, it is abundantly clear that Connie Lascano was considered to be a suspect even before the officers came to get her.
¶12Rule 2.3, A. R. Crim. P., states:
If a law enforcement officer ... requests any person to come to or remain at a police station, ... he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.
¶13In the present case, two police officers appeared at appellant’s home, advised her that they were police officers and asked her to come down to the sheriff’s office, after which she was placed in the back seat of the police vehicle and transported to the sheriff’s office. One of the officers, Sergeant Charles Rexford, testified in response to the question, “Did you tell her she was a possible suspect in the case?”; “No, I did not.” Furthermore, the uncontradicted evidence is that the police officers made no attempt to comply with Rule 2.3. It is my opinion that this violation combined with the other, serious errors brought before us in this appeal should be grounds for reversal. There is no doubt in my mind but that there was ample legal evidence with which to convict the appellant. However, I would not whittle away one word or one letter of the constitution in order to make the present conviction stand up.
¶14I dissent.