CALVIN FARRELL HADLEY v. State , 251 Ind. 24 ( 1968 )

Mote, J.

Appellant, Calvin Farrell Hadley, his brother, Carl Steven Hadley, and another, James Woody Garland, were charged by affidavit with the crime of Second Degree Burglary. Omitting the formal parts, the affidavit is as follows:

“Alvin L. Wolfe being duly sworn, upon oath, says that he is informed and believes that on or about the 19th day of June, 1966, at and in the County of Bartholomew and State of Indiana, one James Woody Garland, one Calvin Farrell Hadley and one Carl Steven Hadley did then and there unlawfully, feloniously and burglariously break and enter into a building, not a dwelling house or place of human habitation, and in which they the said James Woody Garland, Calvin Farrell Hadley and Carl Steven Hadley had no right to enter, said building being occupied for business purposes by Richard L. Johnson, doing business as Johnson Oil Company, said building being located at 1314 Sixth Street, Columbus, Bartholomew County, Indiana, with intent to commit a felony therein, to-wit: To unlawfully and feloniously obtain unauthorized control over property of the said Richard L. Johnson, and permanently deprive him of the use and benefit of any property then and there obtained, then and there being contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State of Indiana.”

The cause was filed in the Bartholomew Circuit Court but was transferred to the Bartholomew Superior Court where, after preliminary proceedings, it was tried to a jury which returned its verdict of guilty, as follows:

“We, the Jury, find the defendant, Calvin Farrell Hadley, guilty of the offense of burglary in the second degree, as charged in the affidavit herein, and fix his age at-years (filling in the blank the age you find the defendant to be).

s/ William H. Harris Foreman”

Appellant filed a Motion in Arrest of Judgment, which Motion was overruled, after which judgment was pronounced and entered as follows:

“IT IS THE JUDGMENT OF THE COURT that the defendant, Calvin Farrell Hadley, is guilty of second degree burglary as charged in the affidavit herein and that he is 25 years of age, that for the crime by him committed he be sentenced to the custody of the Board of Trustees of the Indiana Reformatory to be confined at the Indiana State Reformatory, as guilty of second degree burglary, for not less than two years nor more than five years and that he be disenfranchised for a period of five years and rendered incapable of holding any office of trust or profit during such period; and that he pay one third of the costs of this action taxed at $-.”

Prior to trial, Appellant and his co-defendants filed their Motion to Suppress Evidence, the body of which is as follows:

“Comes now the defendants Calvin Farrell Hadley and Carl Steven Hadley, by their attorney, and respectfully move the Court to order the suppression from evidence in the forthcoming trial of said cause the following items, to-wit:

A. One (1) Royal Standard Typewriter, Serial No. 4875715, Model HHe, which said typewriter was search (sic) for and seized from the residence of Calvin Hadley, 682 Maple Street, Columbus, Indiana, without legal process, and

B. Other items of personal property, the particulars of which are unknown, which were likewise search (sic) for and seized from said residence without legal process. As well as all photographs, written and oral testimony thereof, and all other reference thereto of any kind.

The above named defendants would further show the Court that said items, and particularly said typewriter, were on the 19th day of June, 1966, discovered and confiscated by the officers of the Police Department of Columbus, Indiana, in a manner violative of Article 1, Section 11 of the Constitution of the United States, and cases and statutes made and designed thereunder as follows:

1. That on or about June 19th, 1966, at approximately 6:30 A.M., police officers of the City of Columbus, Indiana, entered the said residence of Calvin Hadley at the above named address without consent, expressed or implied, and without a search warrant issued by any Court, nor without any justification whatever under the circumstances.

2. That said residence was then and there occupied by the above named defendants, being the sons of the owner thereof, and having a possessory right and interest therein.

3. That said officers entered said dwelling by illegally opening the dosed rear door thereto, which said rear door opened into an enclosed back porch of said dwelling. That once therein, said officers searched for and seized, and photographed said typewriter without consent nor without legal process of any kind.

4. That after searching for, finding, and seizing said typewriter, said officers, subsequently entered the rest of said residence and arrested the above named defendants for the charge of Second Degree Burglarly (sic).

5. That upon being arrested, the defendants were immediately taken to the Columbus Police Station and there detained while officers remained at said residence and continued their search and seizure, still without consent and still without legal process of any kind.

6. That said typewriter was not searched for nor seized incident to the legal arrest of these defendants, since said search and seizure occurred prior to the time of their arrest and occurred in an area not contiguous to their presence nor within their immediate control.

7. That the search and seizure of said typewriter was further not incident to any legal arrest of these defendants since said arrest was without probable cause and not within the scope of any fresh pursuit of said officers.

8. That all searches and seizures of said residence subsequent to the arrest and devoid of all legal process whatsoever, and all evidence and items obtained therefore are likewise inadmissible.

WHEREFORE, the defendants and each of them pray that said evidence above described as well as all photographs and references thereto be suppressed from the trial of this cause and that the Prosecutor be further ordered, at peril of mistrial, to refrain from the introductions of said evidence directly or indirectly as well as making any direct or indirect reference to it.”

The record is not clear whether evidence was heard on said Motion to Suppress or that only the evidence at the hearing on Appellant’s Petition to Reduce Bond exclusively was considered by the trial court in overruling the Motion to Suppress Evidence as set forth above. In any event, Appellant filed a Motion for New Trial, which was overruled on December 21, 1966. This appeal results and Appellant assigns as error the overruling of said Motion for New Trial and relies for reversal upon two specifications as follows:

1. “3. Irregularities in the proceedings of the Court, wherein the Court abused its discretion and prevented the defendant (Appellant) from having a fair trial, to-wit:

(b) By overruling this defendant’s (Appellant’s) motion to suppress evidence illegally obtained by an unlawful search and seizure of his person and premises, and by allowing such evidence to be introduced at trial.

(c) By overruling this defendant’s (Appellant’s) motion in arrest of judgment filed subsequent to the jury’s verdict of guilty.

7. Error of law occurring at the trial, in this, that the Court admitted, over the objection of the defendant (Appellant) , State’s Exhibit Number 9, namely, a typewriter discovered at the defendant’s residence by officers of the police department acting without the authority of a search warrant nor permission from any person, and the discovery of which typewriter at said residence was not incident to any lawful arrest of this defendant, which offer, objection by the defendant and the ruling of the Court thereon are as follows:

State: At this time, your Honor, the State will offer into evidence this Exhibit 9.

Defendant: To which counsel for the Hadley defendants will object on the basis that this typewriter was obtained by the police via an illegal search and seizure.

The Court: The objection is overruled. At this time the State’s Exhibit Number 9 will be received into evidence.”

2. Abuse of discretion in overruling Appellant’s Motion in Arrest of Judgment, which is as follows:

“Come now the defendants, Calvin Farrell Hadley and Carl Steven Hadley, by their attorney, and move the Court to arrest judgment on the verdict heretofore rendered in this cause for the following reasons:

1. That the facts stated in the affidavit do not constitute a public offense.

WHEREFORE, the defendants and each of them pray that this motion be sustained, that judgment be arrested, and for all other relief in the premises.”

Appellant says that “because grounds 3 (b) and 7 above both concern the suppression of evidence question, they will be grouped together and supported by one argument.”

Inasmuch as the two specifications of alleged error (Nos. 1 and 2 above) are related and the answer to Appellant’s assertions will be forthcoming and depend upon the validity of the “search” without warrant and the correctness of the admission into the evidence of Exhibit 9, we shall consider them together.

The fundamental issue to be determined in this appeal is whether the officers needed a warrant of search of the premises in which Appellant and his co-defendants were found. If not, the asserted errors cannot be well taken.

In onr consideration of this appeal, we first are confronted with a number of assertions which do not have the support of the record submitted to us. In his Summary Statement of Evidence, Appellant says:

“Because Appellant is principally urging as grounds for reversal the error of the trial Court in overruling his Motion to Suppress Evidence, the evidence upon which such ruling was predicated, i.e., that which was taken at the Petition to Reduce Bond hearing of the defendant Carl Steven Hadley and which is made a part of the record by Bill of Exceptions Number One (TR. P. 120) will be first summarized. What follows is what Appellant considers pertinent to this point.”

Then follows a resume of the testimony of Captain of Detectives of the Columbus (Indiana) Police Department which concerns what occurred immediately before, during and immediately after arrest; a resume of the testimony of Police Officer Cleon Sweeney; Detective Sergeant Alvin Wolfe; and Police Officer Eddie Yeley. Appellant then says :

“The evidence adduced at the trial of the cause, made a part of the record by Bill of Exceptions Number 2, containing the Evidence (TR. P. 198) will be summarized only to the extent that it is pertinent to the issue which Appellant is urging for reversal, i.e., the trial court’s overruling of his Motion to Suppress Evidence. Appellant will therefore summarize only the offers, objections, and rulings of the Court on the items sought to be suppressed from evidence and which were the object of his Motion.”

Following is Appellant’s summary of the testimony of State’s witnesses Patrolman Larry Hall and Richard Johnson, owner of the bulk oil plant which allegedly had been burglarized.

The evidence thus presented indicates that three men were seen about the oil plant from which a typewriter, later introduced in evidence over Appellant’s objections, had been removed; the Police Department was informed; several police officers promptly arrived at the scene; some of the officers were informed that these three men were seen leaving the plant with a typewriter and had sought refuge in a nearby residence, which is the home of the parents of two of the men involved who were emancipated. The parents and owners were not at home. Knocking at the front door of the residence and receiving no response, some of them went to the rear, entering a back porch to the weather door of the house. It developed that the typewriter could be and was observed by at least one officer. One officer “yelled out” and they may have heard “come in”, but this is doubtful. They forced entrance to the residence, found the three men and arrested them, following which the charge herein was made against them. The typewriter was shown to be the property of the oil plant owner and without his knowledge or permission was removed therefrom and found in the possession of Appellant and two others under the circumstances here related.

In our opinion, this record does not support Appellant’s contention that there was either an unlawful arrest or that there was an unlawful search.

It is not always necessary to have a warrant of arrest to make a lawful arrest. The record herein suggests to us that the officers of the law were .conducting an investigation of a reported burglary, almost immediately following the perpetration of such felony, in fact, while efforts were being made by the Appellant to “get away” and to hide in the home where he was found and where he had been seen to enter. It is a fair conclusion, we think, that the officers were fairly hot on the trail and we find nothing unlawful about the arrest under the circumstances here presented and certainly the trial jury had the right to so find.

The facts concerning the asserted “illegal” search and confiscation of the typewriter, as well as its introduction into the evidence, must now be examined. We must preserve the constitional restriction that “[T]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable search, or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” These restrictions are limited, however, to unreasonable searches and seizures. All arrests and all efforts to discover evidence moreover do not fall within such restrictions.

That a search incident to a lawful arrest is legal is well estalished. See Annotation 89 ALR 2d 717. The constitution prohibitions are applicable only to unreasonable search and seizure. People v. Hord (1928), 329 Ill. 117, 160 N. E. 135; Harris v. United States (1947), 331 U. S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098. Further, it has been stated repeatedly that a search and seizure without a warrant is not unlawful if the arresting officers conducting the search at the time had a reasonable or probable cause for belief that a felony had been committed. Snow v. State (1955), 234 Ind. 234, 125 N. E. 2d 802; Havener v. State (1955), 234 Ind. 148, 125 N. E. 2d 25; Arthur v. State (1949), 227 Ind. 493, 86 N. E. 2d 698; Thomas v. State (1925), 196 Ind. 234, 146 N. E. 850; Connell v. State (1939), 215 Ind. 318, 19 N. E. 2d 267.

Many recent decisions in this area appears to have reached somewhat extreme results by abandoning these well established principles and incorporating academic subleties that have little foundation in reason or law.

The U. S. Supreme Court in Agnello v. United States (1925), 269 U. S. 20, 70 L.Ed. 145, 46 S. Ct. 4, 51 ALR 409, stated:

“The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits is not to be doubted.”

Further, the search is not made illegal because it occurs before the lawful arrest. People v. Vice (1956), 147 Cal. App. 2d 269, 305 P. 2d 270; Knight v. State (1926), 171 Ark. 882, 286 S. W. 1013; Gray v. State (1960), 207 Tenn. 39, 336 S. W. 2d 22; People v. Hughes (1960), 183 Cal. App. 2d 107, 6 Cal. Rptr. 643.

In his brief, Appellant acknowledges the above principles of law. He further contends, and we agree, that the search must not only be made incident to the arrest, but contemporaneous therewith as to time and place. We do not agree, however, with Appellant’s application of this principle. He argues that because the typewriter was found on a back porch, removed from the rest of the house and the room in which the arrest was made, the search must be illegal as not contemporaneous as to place of the arrest. Inherent in this argument is the fact that had the typewriter been found a few feet away in the main part of the house, the search would have been valid. It is this type of interpretation which must be avoided.

The instant case does not involve officers conducting an “exploratory” search for evidentiary materials. See: Go-Bart Importing Co. v. U. S. (1931), 282 U. S. 344, 75 L. Ed. 374, 51 S. Ct. 153; United States v. Lefkowitz (1932), 285 U. S. 452, 76 L. Ed. 877, 52 S. Ct. 420, 82 A.L.R. 775.

The Supreme Court of the United States has recognized the need in this area for a sound and reasonable application of general principles of law. In Harris v. United States, supra, that Court stated at page 152 of 331 U. S.:

“Nor can support be found for the suggestion that the search could not validly extend beyond the room in which petitioner was arrested. Petitioner was in exclusive possession of a four-room apartment. . . . But the area which reasonably may be subjected to search is not to be determined by the fortuitous circumstance that the arrest took place in the living room as contrasted to some other room of the apartment.”

Having found the search incident to the arrest as to time and circumstance, and the only direction which remains is whether or not the officers had a reasonable basis for believing that a felony had been committed. If such a basis is found, the arrest and therefore the search must be upheld.

The well known tests of “probable cause” and “reasonable grounds” are the determining factors to be applied to the specific factual circumstances. When applied to the instant case, there can be little doubt that the officers had probable cause to believe that a felony had been committed and that the perpetrators, seeking refuge, fled into the house entered by the officers.

The evidence shows that the report of the break-in was received by the police about 6:25 A.M. Further evidence shows that at least some of the officers arrived on the scene at 6:30 or 6:35 A.M. They went directly to the house which witnesses reported the Appellant had entered and the arrest was made about 6:45 A.M.

The officers not only had reasonable cause to believe that a felony had been committed, but that the person arrested was guilty of the commission of the felony. There further appears little doubt that the officers were in “fresh pursuit” of the Appellant. Evidence shows that as little as five minutes elapsed between the time of the report and the arrival of the officers upon the scene of the break-in, and about ten more minutes elapsed before the arrest had been perfected.

In Stearsman v. State (1957), 237 Ind. 149, 143 N. E. 2d 81, the officers had had the appellants under surveillance for a period of time before meeting at the home of one of the appellants. Upon arriving at the home, two officers went around to the back door, while two others remained in front and rang the front door bell. The wife of one of the appellants answered the front door and the officers entered and arrested the appellant. One officer testified that he entered the house for the purpose of arresting the three appellants for second degree burglary and “that he had a sufficient number of men with him ‘to guard the house to keep a flight from taking place.’ ” At page 166 of 237 Ind., this Court stated:

“We believe this evidence ... is sufficient to sustain a finding . . . that the officers entered the home of appellant Peak for the purpose of arresting appellants for the commission of a felony and not for the purpose of searching the house, and that at the time they entered the house they had probable cause to believe that appellants had committed a felony. . . . Under these circumstances the articles which appellants sought to suppress were legally seized and there was no violation of appellant’s rights against unlawful search and seizure.”

Although there was some evidence that the officers in the case at bar responded to the words “come in” before entering the house, even assuming that no response or consent to enter was given, there is no doubt that the entrance and ensuing arrest would be any less legal, either in the Stearsman case or in the instant case.

In Henderson v. State (1955), 235 Ind. 132, 131 N. E. 2d 326, police officers investigated a report of shots heard in appellant’s apartment. The officers knocked on the door and after nobody responded, they entered. Appellant contended that this was a violation of constitutional prohibitions against unreasonable search and seizure. This Court stated the general principle that an officer, having reason to believe the person to be arrested committed the felony which he had reasonable grounds to believe was committed, can arrest without a warrant and search the party arrested and the premises. See also: North v. People (1891), 139 Ill. 81, 28 N. E. 966; People v. Humphreys (1933), 353 Ill. 340, 187 N. E. 446; People v. McGowan (1953), 415 Ill. 375, 114 N.E. 2d 407; People v. Clark (1955), 7 Ill. 2d 163, 130, N. E. 2d 195; Robinson v. State (1925), 197 Ind. 144, 149 N. E. 891; Eiler v. State (1925), 196 Ind. 562, 149 N, E. 62.

Further, this case is not factually aligned with those decisions mandating search warrants in instances in which they can, and should be, obtained easily. Mapp v. Ohio (1961), 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684.

In Cooper v. California (1967), 386 U. S. 58, 65, 17 L. Ed. 2d 730, 736, 87 S. Ct. 788, Justice Douglas succinctly stated the distinction we make:

“Unless the search is incident to an arrest, I would insist that the police obtain a warrant. . . .”

We may say that we are not unaware of the charge made against the Appellee of failure to “grapple” with the central question involved in this appeal. This, we think, hinges upon an appraisal of the demonstrated facts and inferences therefrom as contained in the briefs. It seems to us that the record before the Court and with which this Court must concern itself is wholly lacking in tenor, thus to create the necessity for a text-book opinion on the ideas and ideals of a democratic society. It is not helpful, in our opinion, to dwell upon such cliches as “it is the illegality of the entry in this case that makes the search invalid, not the fact that the search occurred before the arrest.” Perhaps we can put the fundamental principle in proper perspective: The search herein was made in conjunction with a lawful arrest.

Further, the result and applicable principles of law involved herein can in no way be said to infringe upon or weaken the constitutional right of every individual to be free from unreasonable search and seizure and illegal arrest. It must be stressed, however, that the mere fear of infringement upon these rights, if the law be improperly administered, creates no rights and this alone should not be the basis or rationale of any dilution of the established law.

The judgment is affirmed.

Arterburn, J., Concurs.

Lewis, C. J., concurs with opinion, in which Arterburn, J., concurs also.

Hunter, J., dissents with opinion in which Jackson, J., .concurs.