*1 361 other inquire going to still before, . . . so [she] accident, did she And, prior date companies.” elsewhere. purchase insurance by all an contract there be intention rescind a must
To Ralya contracting parties Atkins to terminate contract. v. Accep 726; (1901), 331, Commercial & Ind. 61 N.E. Co. 157 244; (1931), App. 136, tance Co. Walton 176 N.E. Bailey (1881), Dotson v. Ind. 434. The facts show 76 Buckeye Company new, cor Union Insurance never sent a policy to them rected Mrs. DeLeon after she informed she might they place ever still her insurance elsewhere. Nor did way any premiums her bill her for or with communicate July 15, support after 1967. I believe that these facts binding in conclusion of trial no court Buckeye surance contract Mrs. DeLeon and Union between Company Insurance on the the accident. date of implied agreement “(An) may to rescind consist by repudiation abandonment one contract parties other; acquiesced to or . assented . . part purchaser on the Conduct of both vendor which is inconsistent the continuance of the contract . . . constitutes rescission abandonment.” Brannock Fletcher N.C. 155 S.E.2d 542. hardly parties The conduct can be said to be consistent The trial with the continuation of the contract of insurance. Michigan judgment court’s should be affirmed as to both Liability Company Buckeye Insurance Mutual Union Company. Reported 754. at 289 N.E.2d
Note. — Butler,
Add v. State Indiana. Jr. Rehearing January 2-672A16. Filed December 1972. denied [No. May 2, denied 1973.] 1973. Transfer *2 Steers, McNamar, Klee, Lemay, F. & David Sullivan *3 appellant. Indianapolis, for Sendak, Attorney General, Colker,
Theodore L. Robert F. Attorney Assistant General. Summary
Case Defendant-appellant, Butler, Add Jr. Buchanan, P.J. (Butler), appeals from a court trial conviction of pursuant (Burns Supp. heroin Ind. 10-3520 Ann. Stat. § 1972). We affirm.
FACTS —The facts evidence most favorable judgment are: and the below approximately July 21, 1971, At 10:00 on P.M. Butler and standing open other men unoccupied three were near an parked gasoline convertible in the service area of service a on the station located North corner of and West Streets in Indianapolis. open by was owned one convertible conversing the three men with Butler. patrol, a (Officer
While on routine Officers James Brenton Brenton) (Officer and Carl Robertson Robertson) Department Indianapolis Police observed Butler and the standing men ap- three outside of station service Upon proached seeing three men. officers, Butler open dropped moved toward convertible and a package into Butler the back seat. then walked inside the got service station while two of the other three men into the car. Robertson,
Officer warrant, without a search and before making any searching any arrests men, ap- of the four proached car, opened the door and retrieved cello- phane package from rear floorboard of the car. Officer package testified that the by Brenton retrieved Officer Robert- the same son was discarded Officer Butler. Robert- gave son then to Officer Brenton, who examined it packets, it to contain three tinfoil and found each filled powdery After a white substance. Officer Brenton conducted Reagent Marquis (a preliminary Test field examination presence opiate to determine the drug), derivative Butler and the other men two were searched and arrested. packets
The three tinfoil and their contents were returned cellophane package, to the which turn yellow envelope. Brenton Officer Brenton then marked envelope the outside of proceeded identification and Headquarters, to Police where at 11:25 P.M. yellow
night, envelope deposited in the Narcotics Property Room Vault located in the basement of Headquarters. Indianapolis Police yellow envelope On October was taken from the Narcotics Vault Room and delivered *4 Laboratory, Phillips the Police where Carl (Phillips), a Indianapolis forensic chemist the Department, Police conducting examined the contents. After tests, routine heroin, results of which disclosed substance was packets Phillips cellophane the tinfoil package sealed and envelope marked yellow he bag, it in the which plastic a Property Eoom. to Narcotics Vault sent back envelope yellow February 10, 1972, the trial At on produced Exhibit Num- and became State’s its were contents “cellophane package”) (hereinafter to referred as ber Phillips as being Brenton and identified after they with in connection to deal had occasion Butler’s arrest. guilty by to court sentenced Butler found nor more Department less than two of Correction for not years. ten than
ISSUES warrantless Eobertson’s ONE. Did Officer ISSUE open consti- convertible search of seizure, illegal there- search and tute an the cello- suppression of requiring the that search phane package obtained and seizure? custody a sufficient chain
ISSUE TWO. Was over to established cellophane warrant admission of package into evidence? presented THEEE. the evidence sufficient
ISSUE Was guilt beyond Butler’s a establish reason- able doubt? says open con- ONE,
As Butler search of ISSUE illegal probable cause there vertible was was no because felony believe had committed. been suspicious points actions response, the In cause, making probable the search as sufficient to establish thus valid. break TWO,
As to Butler asserts ISSUE custody because in the chain of *5 366 cellophane package Brenton in the “Nar-
Officer July later, three cotic Lockbox” on and some months “Property it Room.” Phillips from the removed any response The is that no of State’s was evidence cellophane tampering package of with or alteration it taken the time was to the Narcotics Vault July 21, 1971, presented on until it Room admission for February 10, trial into evidence at on 1972. THREE, that evidence
As to ISSUE Butler contends by presented convic- State was insufficient sustain his tion because there was doubt a reasonable as to whether by Officer Robertson was retrieved cellophane package purportedly Butler into threw Furthermore, back that seat of the automobile. Butler asserts proving there was no evidence introduced that he one drugs. persons by possess the class of authorized law to conclusively The proved, says, State by discarded the same Butler was retrieved there is Robertson and furthermore no requirement proof that Butler was not one of the class of drugs.' persons to possess authorized or control narcotic DECISION ISSUE ONE —It is our the search the auto- by Officer illegal mobile Robertson did not constitute an and seizure. search general
We are requiring exigent aware of the rule cir cumstances and the probable existence of justify cause to Coolidge warrantless search Hampshire and seizure. v. New (1971), 2022; 91 S.Ct. (1970), Stuck v. State 255 Ind. 611; 264 (1967), N.E.2d Manson 249 Ind. 229 801. N.E.2d
Because of the
mobility
automobile’s
may be
search
delayed.
if
thwarted
requirement
Relaxation of the
of a
permissible
warrant
is
in certain circumstances. United States
110;
(7th
1972),
F. 2d
Idol
Zemke
Cir.
v.
307, 119
428.
N.E.2d
him
important
appeal
may wrap
this
But
is who
more
security against unreason
the mantle
constitutional
self in
right
personal.
able
searches and seizures.
rights
party’s
of a
unconstitutional
Violation
third
sup
grounds
cannot
an accused as
be claimed
against
.sought
him.
introduced
pression
be
of evidence
*6
365;
305,
N.E.2d
Ind.
232
(1968),
Kirkland
State
249
v.
919; United
609,
(1970),
State
Ind.
255 N.E.2d
Greer v.
253
(7th
1954),
Objection seizure to search and an own, have or property not defendant does which State, right Kirkland v. possess, of to is no avail. 431, 204 supra; Lindsey (1965), 246 Ind. State v. 307, (1966), 247 Ind. 357; Minton State N.E.2d v. N.E. 548, 180 (1962), 242 Ind. 380; Britt v. State 214 N.E.2d 171; 193, N.E.2d 225 235; (1967), Ind. Adler v. State 248 2d 454, 147. (1966), 217 Ind. N.E.2d Wilson v. State 247 State, supra, Kirkland the defendant arrested In v. riding robbery with while a co-defendant the co-defend- arrest, police ant’s After the the co- automobile. searched money automobile discovered the obtained defendant’s robbery. affirming a denial In the defendant’s from the of suppress the evidence search of obtained motion automobile, Chief Justice Arterburn em- co-defendant’s right against personal unreason- phasized nature of the seizures: searches and able
“* * * circumstances, appellant Under has no right complain legal an the search automo- of of possession was not the time. which in Ms at bile individual, rights personal to are “Constitutional rights party’s constitutional cannot be of a violation third It by defendant in a trial. is well settled claimed a party’s property home, third search that a cause, probable cannot be made without even if exclusion for the a defendant claim the basis aof 368 (1967), 193, 225 v. State 248 evidence. Adler Ind. such v. (1966), 171; 454, N.E. Wilson State Ind. 217 N.E.2d 247 Williams v. State 147; (1929), 175, N.E. 201 Ind. 166
2d 1; v. State 663; Speybroeck (1926), 198 154 N.E. Ind. v. State (1926), 728; Earle Frye 197 151 N.E. Ind. 405; (1924), 142 N.E. Walker Ind. supplied.) (Emphasis 16.” N.E. open evidence is that the convertible searched The conclusive by Butler, not nor does Robertson was owned that he control had record indicate was in of or right possess only automobile. The open with the is connect Butler convertible stading he near it in the service station area two men, hardly other suffi- one whom was the owner. This is possession cient to Butler was in warrant the inference that right of or had convertible. authority From the cited above conclusion inevitable though may even Butler have ridden in man’s another automobile, may vicariously he draw on the con- owner’s against privilege stitutional unreasonable search and seizure. Therefore, and its contents were properly admitted into evidence.
ISSUE TWO—It is custody our that a chain of over cellophane package the was established so as to ad- warrant mission into evidence. years
In recent custody the chain of rule has sub- been the ject judicial purpose of Its complete interest. is to establish a possession chain of original from the receiver to the final lay proper custodian in order to connecting foundation the question evidence in with the accused. Justice Hunter in Graham 525, v. State (1970), 253 652, aptly Ind. 255 N.E.2d stated rule be: *“* * wjiere ifog purchased as in case seized or nar 0f
cotics, object in passed evidence has out offered of possession original receiver and into the of possession others, possession a chain must be of of any established to substitution, avoid claim of
369
may
mistake,
proof
such
tampering
to submit
or
failure
testimony
as
evidence
result
the exclusion
in
of
testimony is
evidence or
Where such
its characteristics.
party
prejudicial
and is
to the
improperly introduced
trial
directed,
judgment
then
of
against
court should
it is
whom
(Emphasis by
court.)
be reversed.”
(1970),
356, 260
254 Ind.
v. State
Guthrie
See also:
553;
(1972),
McMinoway
283 N.E.2d
579;
v. State
N.E.2d
Kolb 469,
(1972),
evidence the the exact which whereabouts of evidence, probabilities. becomes issue one of holdings “Appellee which has cited several cases the tampering possibility ex that all not indicate need be cluded; upon reasonable assurance that exhibit has through undisturbed condi passed the various hands any remaining go proper tion its admission is its 305 doubts 566, only. (1956), weight People v. Riser 47 See Cal.2d 1; Breeding 151 (1959), v. State 220 Md. P. 2d 312; 743; (Mo. 1965), Baines S.W.2d A.2d N.E. 353 Mass. v. White Commonwealth logic grounded a rule well believe such 2d 335. We supplied.) (Emphasis and reason.” possibility could result, mere “[a] As totally objection- tampered make it will have been State, supra. Kolb v. able.” indicates no record break
Our examination July day chain arrest, time the introduced to the at trial. into evidence *8 testimony direct, of Officer Brenton
The uncontroverted revealed, night of Butler’s arrest that at 11:25 P.M. on
(July 21, 1971), placed Vault” “Narcotic Property Room in the basement Headquarters. Police While Officer Brenton dis- failed to precisely close put cellophane who package in the Nar- Vault, cotics he unequivocally’ did state that it was at July 11:25 P.M. on 1971. Officer testi- Brenton fied:
“Q. you I hand what’s been purposes marked for identi- fication, 1’, Exhibit you ‘State’s identify ask exhibit contents thereof ? yellow envelope A. This is a my initials, and my date, suspected writing. packets This three tinfoil Heroin package. and in a Q. you identify it, Would Officer?
A. This is the that I sent in to the Narcotics Vault —the Narcotic Lockbox. Q. Alright, is this same brown —are the contents envelope packets you this that retrieved from Defendant? they Yes, A. are.
Q. you Alright, envelopes pack- what did do with —the your Marquis Reagents you performed after ets Test
on it? envelope, police put I them into went head- A. this eleven-twenty-five (11:25) they quarters, and at P.M. put Lockbox, the Narcotic were into in the basement (Emphasis supplied.) headquarters.” testimony and evidence was also uncontroverted Lockbox referred Narcotic Officer Brenton Vault as the Narcotic located in the Room Indianapolis Headquarters. in the basement Police himself Officer Brenton used the terms “Narcotic Vault” and interchangeably during “Narcotic Lockbox” the trial when he said: I “This is the sent in to Narcotic Vault— Lockbox.”
the Narcotic *9 testimony of by specifically Furthermore, the it was shown Property in the Phillips Narcotic Vault is located that the Room: kept
“Q. cellophane package] Alright, it and where is [the room? property in the A. In the Narcotics Vault.” 22, 1971, cellophane package the taken
On October was Property Room, Vault in Officer from Narcotics where originally deposited, that it Brenton said and delivered Indianapolis Department Laboratory, Police to where analysis Phillips An conducted a chemical of its contents. unqualified testimony examination of and uncontroverted Phillips break in the chain of reveals was no the time it was taken from the Narcotics from Phillips analysis, Vault, to for and returned delivered to respect possession of cello- Narcotics to his Vault. With Phillips phane package, testified:
“Q. Alright, directing your attention marked to what’s been it, 1’, you as Exhibit I’ll ‘State’s ask to now examine you you’ve prior and if ever seen ask ‘State’s Exhibit 1’
to this date? Yes, I have.
A.
Q. and And when where? 22nd, It from the Room on
A. was taken October brought laboratory, where I examined to the it. then, you with
Q. you what did do examination After 1’? No. Exhibit ‘State’s plastic analysis, it I sealed in this I finished A. After markings envelope, on bag, it to returned! property room. taken back to it, it was kept property room? is it Q. Alright, and where Vault. In Narcotics A.
Q. Vault? Yes.”
A. Phillips Brenton,
Like who also failed disclose analysis cellophane package delivered the to him who for analysis. it Never- returned Vault after Narcotics his state, theless, affirmatively he reservation, did without October from on was removed brought Vault, originally placed, it Narcotics where was analysis, day him and returned on the same Narcotics Vault. only claim of a break in chain that the cello-
phane package in the “Narcotic Lockbox” by Phillips, Officer Brenton and was removed who it took *10 got “Property question the Room.” His is how it the from “Property excerpt the Room.” The “Lockbox” from the rec- quoted unquestionably ord above confirmed that the Nar- Lockbox, (s) Vault, cotic or Narcotics was the located in Property Indianapolis in basement Room the in Police Head- quarters. State, supra, custody”
In Kolb the most recent “chain of pronouncement by Supreme laying Court, our the foundation complete strong evidence is not as as in the case us. before Kolb, charged In the defendant was of mari- juana. September The evidence revealed that on 1970 an Princeton, Meter of the Depart- Officer Van Indiana Police recipient bag ment from the minor seized be- substance marijuana. placed lieved be No identification marks were (unlike bag by cellophane pack- the Meter on Officer Van our age) bag Jackson, . The was then delivered to an Officer who Bennett, it finally placed in to an Officer turn delivered who Department. bag at Princeton Police it in his the locker The locker 22, 1970, Bennett’s until remained in Officer October matchbox, wrapped placed in a paper it when was in sent and Laboratory Indianapolis. the Indiana Police in The bag Indianapolis the matchbox did not in arrive in the until day, next October 1970. There is no indication the of how bag Indianapolis Princeton, anyone, sent to or who, was if disposition bag placement it. delivered The its and safekeeping apparent opinion. is not on the face of court’s analyzed bag eventually by its were and contents The person Laboratory un- in Police at an undisclosed analysis, bag in placed After this was then known date. Headquarters until Room of State Police However, was no indication as time trial. there finally placed. Property Room it in the where persons other evidence confirmed that had access to during bag Laboratory Prop- time it was and the erty Room.
Despite bag its the lack of identification marks on the and accessibility persons to other in the State Police Labora- while unanimously tory Property Room, Supreme our Court say- agreed custody, that no chain of break in the ing in an written Chief Justice Arterburn: possibility “A mere tam- could been the evidence have objectionable.”
pered totally make it with will not presented specific The evidence the case before us is more admissibility exhibit than which established Phillips Kolb. Officer Brenton identifica- both containing yellow envelope marks on the tion outside positively cello- identified phane Kolb, Also, at the trial. the evidence like us, before failed to the name of disclose *11 Laboratory person persons exhibit the or delivered the to who analysis analysis, or exhibit after who returned the the was conducted. supra, State, support reliance his on Graham v. to custody the
contention a break in chain was of cellophane package misplaced. the over the is In that case custody package chain of over a narcotics of was severed Depart the from the Police because was removed Property ment Room cun Elmore and six returned Officer days later an Sullivan. The whereabouts of during six-day period explained. never this was Neither Officer Elmore nor at Officer Sullivan testified simply any trial. There evidence no of kind in Graham light disposition property during which shed on the of six-day period question. Property Apparently the Police Room records into were introduced evidence in Graham evidence,” a “chain establish of which the court indicated custody accomplished “by producing police could be either * * * by testimony sup- (Emphasis records witnesses.” or of plied.) complete
While evidence before us is far from as procedures Property custodial in the Room Indian- apolis Department, put Police in a Narcotics Lockbox or Vault Room in Indianapolis Department. Police This was also true in Kolb, Graham. question In the narcotic in was in of lockers Troopers through passed mail. United States Guthrie, night In the exhibit all remained on the desk Sergeant. Trooper Graham, Guthrie, Kolb, As we read test is one perfection proof. “possession” The chain of proven if it be demonstrated that there is no reasonable doubt as to “continuous property whereabouts” of the (narcotics) that it has remained in an “undisturbed condition.” imply
To so state is not person name of the property passed whose necessarily hands has must testify same, every as to or that instance the property must be only marked. These are two fac- may tors which combine with other facts and cir- produce acceptable cumstances to chain evidence. proof While before us is less ideal, than find we can missing no link in the chain of of the narcotic in question any nor tampering, loss, or inference respect mistake with package. It was con- tinuously by positive accounted for evidence with reason- able assurance that it in court arrived in an undisturbed condition. *12 custody did, then, establish a sufficient chain of State into package
over the its admission warrant evidence. THREE —It that was
ISSUE is our guilt beyond sufficient to establish Butler’s a reasonable doubt. that Butler’s assertion is that failed State to show package by package retrieved Officer Robertson was same by However, testimony discarded Butler. Officer Brenton’s package was that dis- retrieved the same was by Butler. carded On re-cross examination he testified: “Q. you got Do know Robertson whether Mr. the same package, you dropped that saw into the car? He told me
A. he did. Q. Oh, yeah, you you he he told did. whether Did know he did ? you’d No, to ask Mr. A. have Robertson.
Q. asking you. you knowledge your I’m that Do know of own that ? was the Yes.” A. previously drop testified he Butler cello-
He had saw phane package open convertible. repeat proposi- appellate not
We need standard review weighing credibility witnesses, evidence, tion about etc. probative that conclude evidence of value reasonably trier of could infer the de- which the facts that guilty beyond a fendant was reasonable doubt. complains
Butler also the evidence was not sufficient failed to sustain his conviction reason that persons author- to show that he not one of class of not drugs. by ized narcotic law to have many Supreme negative by times double .has been answered our Court, recently Stanley most v. State 245 N.E.2d Justice Givan: “Appellant prove further that the claims the did any
appellant was not authorized law United posses- morphine States have in his and dilaudid control, total sion or under his there is a This lack of evidence of such lack of authorization. *13 general question crim- many same inal times in has been raised alleged doing a prosecutions of crime is where the cir-
thing possessing thing certain or a which under alleged par- may lawful, in cumstances be but which is previously has ticular case stated that when an be unlawful. This Court the not by statute is and offense created exceptions make other thereto it is or statutes negate stating by necessary exceptions for State not proving that the defendant does come within and same. therefore, upon ain is, It not incumbent the State prove possession narcotics to prosecution all the unlawful for exceptions negate possible or to affirmative appellant might hypothesis by which the every conceivable lawfully. Day (1968), gained See v. State his have 251 (Emphasis supplied.) 359.” 241 N.E.2d Ind. (1928), 200 165 Ind. v. Jalbert See also: 522. N.E. affirmed. therefore is conviction White, J., opinion; J., dissents Sullivan, concurs with opinion. Opinion
Concurring in concur the result J. I reached in the Sullivan, Presiding Judge Buchanan in treatment his Issues cannot, agree framing however, and Three. I with his Two in of Issue One nor The treatment accorded that “Issue”. primary opinion Issue One to states be: open “Did Officer Robertson’s warrantless search of the illegal thereby seizure, constitute an convertible search and
requiring from that cellophane suppression search obtained and seizure?” Quite concisely I “search” do not view case before a us as Consequently, my opinion at it not involve case all. does “probable search”, cause for a nor it whether does involve Privilege against personal unlawful is search to the owner possessor premises property of the or searched.
377
clearly
quite
The evidence of record
the matter
us
before
open,
that the convertible
shows
dropped “into the
re-
packet was
back seat”.
officer
rear
floor
it
board
automobile.
trieved
notwithstanding
Thus,
nature
the State mistakes the
argues
“justified search”,
the facts and
the issue as
simply
applicable.
“search”
It
is
the law relative
“plain
Rather,
is not
“search” case.
view” doctrine
justification
applicable
such latter
is
doctrine
question.
(1970),
packet
Alcorn the seizure of
413;
(1971),
491, 265
Ford v. State
N.E.2d
Ind.
257
808; Deering
App.
N.E.2d
v. State
Ind.
650,
Dissenting Opinion *14 permit analysis not detailed J. Time does White, testimony demonstrate failure which would State’s custody. majority The prove an unbroken chain evidence, accurately however, summarize the does proof reader can see himself standards of careful in Graham 255 N.E. established have been met. 20 Ind. Dec. conviction 2d and the cause remanded for trial. should be reversed a new Reported N.E.2d at 289 772. Note. — Kay Jacquelyn Lewis Flowers Flowers. William Filed December
[No. 1972.] 1271A251.