John A. Fogleman, Justice.
Appellant Charles Durham was convicted of the burglaries on May 25, 1970, of the dwelling houses of E. C. Hardin and Neal James located in the same farming community in Sharp County. The separate burglary charges were consolidated for trial by agreement. Property taken from the Hardin home included a .22-caliber and a .30-.30 Winchester rifle. A .30’06 rifle was among the articles taken from the James residence. Before trial, appellant moved to quash warrants for the search of the truck, residence, bam and premises of appellant in Lawrence County issued by Lucian J. Lee, a justice of the peace of that county. Appellant’s motion asked that the evidence obtained on the basis of the warrants be suppressed. This motion was denied, and the tangible evidence found by the officers was admitted during the trial.
Appellant asks us to reverse his conviction because there was no adequate foundation for the issuance of the warrants. Specifically, appellant argues that probable cause for the issuance of the warrants was not shown by affidavit or evidence under oath. We agree with this contention and with appellant’s further argument that the evidence to which he objected was inadmissible as “fruit of the poisonous tree.”
One of the affidavits was made by Sheriff Ray Martin of Sharp County. In it, the sheriff merely stated that he had good reason to believe that, on May 23, 1970, Charles Durham broke into, entered and carried away from the home of Neal James a Zebco reel, a 12-gauge shotgun, a .22 automatic rifle and a .30’06 rifle. In the other, E. C. Hardin swore that Durham committed burglary by breaking and entering affiant’s residence and removing a .22-caliber Stevens automatic rifle, a .30-.30 caliber lever action Winchester saddle gun, and a .303-caliber British rifle.
Testimony on the motion to suppress showed substantially the following:
E. C. Hardin saw Durham pass the Hardin residence on Saturday, May 23, and subsequently saw Durham in the vicinity several times. Hardin took the license number of the pickup truck in which Durham was traveling. He could see no gun in Durham’s truck on that day. On Sunday morning after the burglaries, Sheriff Martin ascertained that the license number was issued in Lawrence County. He and his deputy, Frolis, picked Hardin up and drove to that county. Hardin saw the truck at Durham’s mother’s house in Lynn. When the officers approached the truck, two men got out of it. As they were talking to the officers, Hardin moved closer to the truck and saw his .22-caliber rifle in open sight in a rack in the truck. He pointed out the rifle to Deputy Sheriff Frolis and identified it. Possession of the rifle was then taken by Frolis. Hardin stated that he read, signed and swore to the affidavit for a search warrant after Lee wrote it out. He testified that he had told Justice Lee the same things that he had testified at the hearing.
Sheriff Martin testified that he had written out the other affidavit and that Lee had sworn him to it. He also said that he and Hardin told Lee the same things they had stated in their testimony at the hearing.
After the affidavits were made, Lee issued the search warrants. Martin, Frolis and Hardin proceeded to the Durham residence, where Sheriff Guthrie of Lawrence County was awaiting their arrival. One of Sheriff Guthrie’s deputies read the warrants to Durham. The weapons were not found in the house, and the testimony as to whether the house was actually entered is somewhat conflicting and confusing. At any rate, while the officers were in the yard surrounding the Durham residence, one or more of them detected a fresh trail leading from the back comer of the yard into a. field in which fescue was growing knee-deep. Upon following this path for about 200 yards, the officers found nine guns, two of which were described in the search warrants and were later identified as having come from the two residences which had been burglarized. The yard had been mowed and was fenced. The field constituted a part of the Durham place on which the house was located and of which the yard was also a part.
It is elementary that a valid search warrant cannot be issued except upon probable cause determined from facts and circumstances revealed to the issuing magistrate under oath or affirmation. Walton v. State, 245 Ark. 84, 431 S. W. 2d 462. The determination may not be based upon conclusions of those seeking the warrant. Walton v. State, supra; Bailey v. State, 246 Ark. 362, 438 S. W. 2d 321. While the facts supplied in a written affidavit may be supplemented by oral testimony, these additional facts must be disclosed from testimony given under oath.1 Walton v. State, supra.
It is clear that the affidavits in this case stated mere conclusions of the respective affiants, so the warrants were not valid, unless the magistrate could have found reasons for those conclusions from testimony of Martin and Hardin given under oath. We have no doubt that statements made by these witnesses to Lee would have furnished sufficient basis for the finding of probable cause for issuance of a valid search warrant. The determination of this critical question turns upon the testimony of Lee. The pertinent part of his testimony follows:
Q. How did you come to issue those Search Warrants — what caused you to issue them, in other words?
A. By the complaint of Mr. Hardin and the Sheriff of Sharp County making requests for the issuance of the Warrants under the Affidavits.
Q. Was there anyone besides those two men?
A. No, sir.
Q. And we are talking about Mr. Hardin and Sheriff Martin?
A. Yes, sir.
Q. Did they come to your home?
A. They did.
Q. Did Sheriff Martin make a request of you for a Search Warrant?
A. He did.
Q. Did Mr. Hardin make a request of you for a Search Warrant?
A. He did.
Q. Did each one of them then sign an Affidavit for a Search Warrant?
A. They did.
Q. Did you swear them at the time they signed to the Affidavits that they signed?
A. I did. In addition I swore them to testify to that as well as signing the Affidavits for the Warrants, which states, “I do solemnly swear that the allegations set forth are true to the best of my knowledge and belief.” You know what the form is on the affidavit for procuring a Warrant?
Q. Yes, sir.
A. But in addition to that, I administered an oath to them to testify to the fact or the reasons that they wanted the Search Warrant. They swore the facts contained in there were so.
Q. You mean that the facts contained in the Affidavits were true?
A. Yes, sir. In other words, there was a double oath.
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John A. Fogleman, Justice.
Appellant Charles Durham was convicted of the burglaries on May 25, 1970, of the dwelling houses of E. C. Hardin and Neal James located in the same farming community in Sharp County. The separate burglary charges were consolidated for trial by agreement. Property taken from the Hardin home included a .22-caliber and a .30-.30 Winchester rifle. A .30’06 rifle was among the articles taken from the James residence. Before trial, appellant moved to quash warrants for the search of the truck, residence, bam and premises of appellant in Lawrence County issued by Lucian J. Lee, a justice of the peace of that county. Appellant’s motion asked that the evidence obtained on the basis of the warrants be suppressed. This motion was denied, and the tangible evidence found by the officers was admitted during the trial.
Appellant asks us to reverse his conviction because there was no adequate foundation for the issuance of the warrants. Specifically, appellant argues that probable cause for the issuance of the warrants was not shown by affidavit or evidence under oath. We agree with this contention and with appellant’s further argument that the evidence to which he objected was inadmissible as “fruit of the poisonous tree.”
One of the affidavits was made by Sheriff Ray Martin of Sharp County. In it, the sheriff merely stated that he had good reason to believe that, on May 23, 1970, Charles Durham broke into, entered and carried away from the home of Neal James a Zebco reel, a 12-gauge shotgun, a .22 automatic rifle and a .30’06 rifle. In the other, E. C. Hardin swore that Durham committed burglary by breaking and entering affiant’s residence and removing a .22-caliber Stevens automatic rifle, a .30-.30 caliber lever action Winchester saddle gun, and a .303-caliber British rifle.
Testimony on the motion to suppress showed substantially the following:
E. C. Hardin saw Durham pass the Hardin residence on Saturday, May 23, and subsequently saw Durham in the vicinity several times. Hardin took the license number of the pickup truck in which Durham was traveling. He could see no gun in Durham’s truck on that day. On Sunday morning after the burglaries, Sheriff Martin ascertained that the license number was issued in Lawrence County. He and his deputy, Frolis, picked Hardin up and drove to that county. Hardin saw the truck at Durham’s mother’s house in Lynn. When the officers approached the truck, two men got out of it. As they were talking to the officers, Hardin moved closer to the truck and saw his .22-caliber rifle in open sight in a rack in the truck. He pointed out the rifle to Deputy Sheriff Frolis and identified it. Possession of the rifle was then taken by Frolis. Hardin stated that he read, signed and swore to the affidavit for a search warrant after Lee wrote it out. He testified that he had told Justice Lee the same things that he had testified at the hearing.
Sheriff Martin testified that he had written out the other affidavit and that Lee had sworn him to it. He also said that he and Hardin told Lee the same things they had stated in their testimony at the hearing.
After the affidavits were made, Lee issued the search warrants. Martin, Frolis and Hardin proceeded to the Durham residence, where Sheriff Guthrie of Lawrence County was awaiting their arrival. One of Sheriff Guthrie’s deputies read the warrants to Durham. The weapons were not found in the house, and the testimony as to whether the house was actually entered is somewhat conflicting and confusing. At any rate, while the officers were in the yard surrounding the Durham residence, one or more of them detected a fresh trail leading from the back comer of the yard into a. field in which fescue was growing knee-deep. Upon following this path for about 200 yards, the officers found nine guns, two of which were described in the search warrants and were later identified as having come from the two residences which had been burglarized. The yard had been mowed and was fenced. The field constituted a part of the Durham place on which the house was located and of which the yard was also a part.
It is elementary that a valid search warrant cannot be issued except upon probable cause determined from facts and circumstances revealed to the issuing magistrate under oath or affirmation. Walton v. State, 245 Ark. 84, 431 S. W. 2d 462. The determination may not be based upon conclusions of those seeking the warrant. Walton v. State, supra; Bailey v. State, 246 Ark. 362, 438 S. W. 2d 321. While the facts supplied in a written affidavit may be supplemented by oral testimony, these additional facts must be disclosed from testimony given under oath.1 Walton v. State, supra.
It is clear that the affidavits in this case stated mere conclusions of the respective affiants, so the warrants were not valid, unless the magistrate could have found reasons for those conclusions from testimony of Martin and Hardin given under oath. We have no doubt that statements made by these witnesses to Lee would have furnished sufficient basis for the finding of probable cause for issuance of a valid search warrant. The determination of this critical question turns upon the testimony of Lee. The pertinent part of his testimony follows:
Q. How did you come to issue those Search Warrants — what caused you to issue them, in other words?
A. By the complaint of Mr. Hardin and the Sheriff of Sharp County making requests for the issuance of the Warrants under the Affidavits.
Q. Was there anyone besides those two men?
A. No, sir.
Q. And we are talking about Mr. Hardin and Sheriff Martin?
A. Yes, sir.
Q. Did they come to your home?
A. They did.
Q. Did Sheriff Martin make a request of you for a Search Warrant?
A. He did.
Q. Did Mr. Hardin make a request of you for a Search Warrant?
A. He did.
Q. Did each one of them then sign an Affidavit for a Search Warrant?
A. They did.
Q. Did you swear them at the time they signed to the Affidavits that they signed?
A. I did. In addition I swore them to testify to that as well as signing the Affidavits for the Warrants, which states, “I do solemnly swear that the allegations set forth are true to the best of my knowledge and belief.” You know what the form is on the affidavit for procuring a Warrant?
Q. Yes, sir.
A. But in addition to that, I administered an oath to them to testify to the fact or the reasons that they wanted the Search Warrant. They swore the facts contained in there were so.
Q. You mean that the facts contained in the Affidavits were true?
A. Yes, sir. In other words, there was a double oath. The one that they signed on the form and then the one that I administered to them.
Q. Le me see if I am completely clear on this, Mr. Lee. You have the Affidavits with you, don’t you?
A. I do.
Q. All right, if you will', get those out, Mr. Lee, so both of us can follow along on the same thing. On the affidavit that was made by Mr. Hardin—
A. All right.
Q. Are you talking about the line on the bottom where it says, "Sworn to and subscribed before me this 24th day,” No, I think I see now what you are talking about at the top there where it says, "I, E. C. Hardin, do solemnly swear,”—
A. That’s right.
Q. Is that writing there those words which say, “do solemnly swear,” on the affidavit, was that one of the things you were referring to that was an oath?
A. Yes sir.
Q. Then you said there was something else — in addition to the wording on the paper that they signed, do I understand that either before they signed or after they signed that you- then had each one of them hold up his hand—
A. And swear—
Q. And swear that what was on the paper, that is, what was written in this Affidavit—
A. Yes, sir, that the allegations set forth to their knowledge and belief was true.
Q. As set forth in the Affidavit?
A. That’s right.
Q. And is that true of both Mr. Hardin and Mr. Martin?
A. It is.
Q. Were they put under oath by you or sworn by you at any other time while they were at your house in connection with these search warrants?
A. No, sir, that was the only time.
We do not think that this evidence justifies any inference that the oral statements made by the complainants were under oath. We take this testimony to mean that Martin and Hardin swore that what was written in the respective affidavits was true but that they were not put under oath or sworn by the magistrate at any other time. The reference to double oaths was explained by | Lee to refer to the written oath and the oral oath, but both related only to the allegations of the respective affidavits. Because we take the evidence to show that the complainants were not under oath when they gave the supplemental testimony, the warrants were not valid.
If the rifles had been found in the Durham field without a warrant and without an entry of the yard around the Durham house by the officers, there is little room for doubt that their seizure would have been justified as the fruit of a valid “open-field” search. See Jones v. State, 246 Ark. 1057, 441 S. W. 2d 458. The evidence before us, however, clearly shows that the trail or path from the yard was discovered by the officers only after their entry under the invalid search warrant. There is no evidence that the trail could have been seen from any place other than the yard. Unlike the field where the rifles were found, this yard was the curtilage of the Durham dwelling and, as such, subject to the same constitutional protection as the house itself. McDowell v. United States, 383 F. 2d 599 (8th Cir. 1967); Wattenburg v. United States, 388 F. 2d 853 (9th Cir. 1968).
The exclusionary rule which has long operated to bar tangible materials obtained as the direct result of an unlawful invasion has been extended to apply to those found as an indirect result. Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Walton v. State, 245 Ark. 84, 431 S. W. 2d 462.
If the evidence to which objection is made has been obtained by exploitation of a primary illegal police action rather than by means sufficiently distinguishable to be purged of the primary taint, it is to be excluded as “fruit of the poisonous tree.” Wong Sun v. United States, supra; Walton v. State, supra. It is true that the burden was upon Durham to convince the court that the evidence was inadmissible under this doctrine. Walton v. State, supra. But the evidence can only be taken to show that the discovery of the rifles in the “open field” was an exploitation of the invalid search warrant. There is no evidence which would justify an inference that the rifles were or could have been discovered without entry upon Durham’s curtilage. In various applications of the “poisonous tree” doctrine, it has been held that seizure of objects in “plain view” cannot be justified if the seizing officers had to physically invade a constitutionally protected area in order to secure the view. United States v. Davis, 423 F. 2d 974 (5th Cir. 1970); McGinnis v. United States, 227 F. 2d 598 (1st Cir. 1955); Commonwealth v. Watkins, 217 Pa. Super. 332, 272 A. 2d 212 (1970); State v. Hagen, 258 Iowa 196, 137 N. W. 2d 895 (1965). We can see no difference in application of the doctrine in “plain view” cases and in those such as this, where the information utilized by the officers to discover tangible evidence was the direct result of an unauthorized entry upon the curtilage of a suspect.
In the light of our conclusion, the convictions must be reversed. For this reason, we do not consider appellant’s other point for reversal — that a new trial should have been granted because one who had been appointed deputy sheriff served as a juror. It is highly improbable that this question would arise upon a new trial.
The judgments are reversed and the case remanded for new trial.
Harris, C. J., and Jones, J., dissent.