*1 The order of the Public Service reversed and remand- Commission opinion. for further in accordance with this proceedings ed Réversed and remanded.
Buchanan, C.J., by designation, concurs. participating Lowdermilk, J., concurs. —Reported
Note Bruce v. State of Indiana August 3-776A160.Filed [No. 1978.] Carlson, Auburn, Carlson, appellant. Smith Stephen R. Indiana, Sendak, Lloyd Elmer Attorney General Theodore L. General, Whitmer, Attorney appellee. Deputy *2 of theft. The by jury tried and convicted P. was Carpenter Garrard, J. 31,1974, Carpenter on p.m. about 3:30 October disclosed that at Auburn, Indiana, time for the second Jewelry in Carbaugh’s entered Sexton, with Althea occupied was day. At the time the salesclerk that years. for some three living whom had been Carpenter the woman with a prepare store with Sexton to went to the back of the As the clerk Carpenter to be she observed repaired, check for a clock that was claim reach into the case containing rings, case diamond display lean over a it in his The clerk called put pocket. then withdraw his hand and owner for ran help. Carpenter and called to the store Carpenter out at owner, gave the store who chase. managed from the store and to elude It acer- given Carpenter’s description. were called and was police ($10,000) nearly thousand dollars were rings tained that valued at ten missing. by county who
Shortly policeman thereafter was arrested Carpenter Carpenter theft and broadcast reported description had heard radio. An hour or two later located a number of the dia- police police using day. mond had been that When Carpenter Carpenter agreed give these were he to a written confes- displayed if remaining gems sion and disclose the whereabouts of the agree charges pressed against would would not be Sexton as an accessory. jewels evidence of the recovered asserts that appeal Carpenter
On He also been excluded at trial. his confession should have as well as of Pro- to Indiana Rules discharge pursuant entitled to contends he was cedure, his trial. We find there delay commencing 4 for Rule Criminal error. is no reversible Discharge
I. Motion were day charges the crime. Formal was arrested 4th, run limits of 4 began the time CR. November instituted 15,1974, the DeKalb escaped from on that date. On December 23,1975. delay May He After some County jail. custody was returned January 1976.1 his trial commenced 4(C) to trial brought entitled be Pursuant CR. (1) free year. the time he was period within one That extended 4(F). 4(C), Thus, when escapee pursuant purposes as an to CR. CR. nearly three remain- trial commenced there were months to discharge. before would be entitled ing however, January require He that the trial date violated the argues, 4(A) his own ment of which a defendant released on provides CR. more recognizance jail if he has been held in trial for without (6) only than six He is viable urges discharge months. remedy from jail expira if a defendant not released at the Moreover, history of the six We period. disagree. tion month CR. 4(A) intent, clearly and our contrary Supreme demonstrates see also so held Collins v. Ind. Lewis v. State 859.2 Admissibility
II. Fruits Crime *3 concerning first that the and their Carpenter argues gems recovery should been excluded the probable have because cause affidavit
which was filed on
4th in
the informa-
support
November
of
tion and
We
request
warrant
was defective.
need not consider
specifics
the
this
provide
affidavit since it did not
the basis
securing
the
in question.
was arrested on October
Carpenter
31st without a
the
pro-
warrant
facts were sufficient
to establish
and
bable cause.3
evidence he seeks
was
the result
to exclude
secured as
much,
determinative,
1.
if
Since
are not outcome
we need not
how
consider
delay
any,
Carpenter.
chargeable
of this
was
provided
discharge
jail
2. Prior versions
the rule
if a
was
defendant held
brought
changed
language
present
not
to trial
six months. That
in favor of
within
was
the
“Any
amendment
effective
shall
the
which became
in 1973:
defendant
so detained
(6)
recognizance
period
released on his own
at the
of the six
aforesaid
conclusion
month
may
pro-
charge against
be held
answer to a criminal
him within the limitations
(C)
for in subsection
of this rule.”
vided
Appellant
argues
appeal
first
3.
also
for the
time on
that
the actual warrantless
However,
invalid.
arrest was
contention has been waived. Johnson v. State
Ind.App.
DeWeese contention, in the motion presented and that Appellant’s principal court, probable is that the state lacked heard the trial suppress which the first search of the vehicle from cause to make a warrantless jewelry was recovered. portion around 4:00 5:15 two
Carpenter p.m. p.m. was arrested About officers, who returned to the scene seeking Carpenter a hat store, wearing jewelry when he was in the located station green wagon seventy-five at a meter about feet from the parked jewelry Upon store. entering the vehicle one of the officers discovered a shoe on the side of the vehicle. It passenger undisputed owner, day had borrowed the vehicle for the from its and that no one had consented to a search the vehicle. un- suppress grounds moved to the evidence on the motion. hearing,
constitutional search and after court denied objected. When the evidence was offered at trial It again by hearing that evidence offered state at appears suppression However, to establish cause for a search. con- inadequate probable directly bearing siderable additional evidence was introduced at the trial Thus, cause first probable requirement. question we must may determine is what evidence we look to in order to whether judge reversible error was committed? course, authority
Of
there is abundant
evidence in
precludes
ab initio.
incorrect
rendering
ruling
troduced after a
from
proceed
party
These cases
on the basis that a
has the burden
for his
if
establishing
objection
neglects
the basis
See,
e.g., to do so he
of the result.
complain
*4
(1971),
512,
874;
(1923),
Morgan
Smithers
v. State
256 Ind.
269 N.E.2d
39,
May
194 Ind.
Three reasons considered. system litigants are to afford
First,
legal
of our
objectives
primary
record demonstrates
Where the
result.
just
to reach a
trial and
a fair
evidentiary irregularities
just, procedural
result was
fair, although
had a
where the defendant
overlooked
may be
con
to the present
close
trial. An illustration
perfect,
not a
objection
proper
over
evidence is admitted
in cases where
text arises
not been
admissibility had
to establish its
foundation
proper
although
necessary foundation is later
If the
was offered.
when the evidence
laid
order
merely one of the
is deemed to be
appear,
question
made to
whole
since the record as a
will be
ruling
upheld
and the
proof
See, e.g., Beeler v.
admissible.
properly
the evidence was
demonstrates
(1945),
744;
444, 104
223 Ind.
v.
N.E.2d
Dixon State
230 Ind.
State
62 N.E.2d
is not intended
suppress
motion to
Secondly, the
on a
pre-trial
only must
admissibility. Not
concerning
expression
to serve as the final
evidence is offered at trial
be made when the
objection
error,
v.
preserve
order to
Pointon
court
hear additional
but the
See, e.g.,Magley
its earlier
admissibility
ruling.
and reconsider
regarding
618, 335
Carson v. State
v. State
24,
Most
must
by
not be served
to consider such evidence. One
recall
failing
would
inherently untrustworthy
suspicious
is
nothing
that there
to be excluded
such motions. Or
sought
about the evidence
dinarily,
contrary.
purpose
of the rule
quite
the case
search or seizure is to at
the fruits of an unconstitutional
excluding
in unconstitutional
government agents
indulging
to dissuade
from
tempt
activity.
from such
ability
them the
Weeks
denying
profit
conduct
However,
341, 58
L.Ed. 652.
S.Ct.
United States
was,
fact,
where the
bearing
effect has no
search
prophylactic
sufficiently
forth
constitutionally
brought
but the facts were not
proper
the evidence under such circumstances
hearing.
at the initial
To exclude
permissible
search would
adequately
when the record at trial
discloses
*5
but
all the
police
permit
no deterrence
erroneous
conduct
provide
necessary
the exclusion
evidence
consequences attending
adverse
(1976), 428 U.S.
See Stone v. Powell
convicting
guilty.
the
helpful
3037, 49 L.Ed.2d
reh. den.
[*] * * sufficient, was, If given trial was as we it think evidence, it is immaterial to sustain introduction of the liquor was inadequacy that there application evidencewhen was made return. A its conviction on adequate and admissible evidence not be set ground.” should aside on such a added) (Emphasis
Accordingly, we hold the admissibility of the evidence be pro- perly sustained the basis of the evdience produced suppres- sion hearing and at defendant’s trial.
That evidence disclosed the following known police information to the they officers when searched the vehicle: The theft occurred about 3:30 p.m. and when Carpenter was arrested about an hour later he had none jewelry of the Shortly his possession. after apprehen- sion police returned to the of the jewelry area store seeking black hat he had been They described as wearing. noticed black circling occupants the area. The car seemed be look- ing for something. police stopped the car and questioned its One of occupants. told occupants police she was present when Carpenter arranged to borrow the green day; station wagon car; he had borrowed the she had noticed it parked near TV only Oberlin’s which Appliance seventy-five Store about feet from the jewelry store. When the they officers checked found the They vehicle in question. did know whether others were involved theft, nor who had access to wagon. the station Under these cir- time. The probable cumstances cause to search the car at that was therefore properly admitted. Admissibility
III. Confession Finally, asserts that his written confession was inadmissi- ble because the officers did not honor his scrupulously request attorney to confer with an in- interrogation before and because he was Therefore, duced confess through charged. fear that Sexton would be it error confession argues, permit any in-trial reference to his jewelry and to admit evidence the hat and to which photographs *6 he had led the after confessing. allegations nothing
We find the for our review. The written present confession was not offered in evidence. When of the photographs jewelry offered,
were
objected
were
to but not on
grounds
they were
involuntary
objec
the fruit of an
confession.4 No
objec
tion was made when the
hat
introduced. Nor was
any
testimony
tion made to
who recounted the
Officer Bartels
arrest,
events
occurred after
Carpenter’s
including
giving
any
the confession. In the absence of
to the
when
objection
offered,
admitted. Pointon v.
it was
properly
Robertson, Concurs; (sitting by J. designation) Staton, J., separate Result and files opinion. Concurs IN RESULT
CONCURRING
standing
result.
did
have
concur
J.
I
Staton,
recovery of some
resulting
of the automobile
to the search
object
the owner of the
was not
stolen.
of the diamond
was searched.
of it at the time it
not in possession
and was
no reasonable
of the automobile he had
to the confines
As
diamond
Possession of the
intrusion.
from
of freedom
jewelry
used at trial. The
itself had been re-
diamonds were
Photographs of the
Carbaugh’s.
turned
offense.
moreover,
element of
not an essential
rings,
owner, Tackett,
in the cir-
have had
would
The automobile’s
Amend-
his Fourth
not base
could
but
presented,
cumstances
is therefore
It
rights.
of Tackett’s
violation
alleged
on an
ment claim
pro-
resolve whether
Judge
here for
Garrard
inappropriate
can be
Amendment
erroneous Fourth
to an
subsequent
duced
ruling.
to sustain
appeal
on
considered
I.
Standing
Jones v. United
determined
of the United States
The Supreme Court
challenge
that an individual’s
362 U.S.
States
(1) stan
on one of two bases:
predicted
seizure
a search and
charg
element of the offense
is an essential
possession
exists where
ding
(2)
ed,
interest
possessory
proprietary
where the individual has a
re
legal
is not a
premises
of the contested search and no alleged proprietary (c) possessory interest and were not premises; charged with includes, an offense as an essential element of the offense charged, possession the seized evidence at the time of the con- tested search and seizure.” Id. that he argues the search because owner, Tackett,
the automobile’s gave him the use of the automobile day. for the He maintains that he was not the owner of although automobile, although custody he was in at the Auburn sta- search, tion at the time of the he nevertheless had a “right possess” to control” the “right automobile. The success of such an argument would depend upon whether a court is to consider compelled different of or the degrees legal nature interest if a defendant determining has For standing. example, should a court afford to a lessee vehicle, yet deny of a to a bailee? In responded Jones argument: to this necessary
“The of interest conferral of has quantum standing] [for distinguished variously, been in or being, ‘ownership right *8 170 the interest a ‘lessee or licensee’ premises’...
possession dominion____We lightly from this depart ... of one with do not however, course of the lower by persuaded, decisions courts. We are it is into the unnecessary import ill-advised to law sur- right the constitutional to be free from unreasonable sear- rounding distinctions, developed by ches and seizures subtle and refined which, evolving body common law in law private property law, any more than other branch of has distinc- shaped been tions validity largely whose historical.... Distinctions such ‘lessee,’ ‘licensee,’ those only between ‘invitee’ and often ‘guest,’ not in gossamer strength, ought fashioning to be determinative ultimately referable to constitutional 362 procedures safeguards.” U.S. at 266. Katz,
This conclusion was affirmed in wherein the held that expectation it was reasonable from governmental freedom intru- sion, and not a in property interest which premises, conferred stan- 389 ding. U.S. at 352. Conferral ins- standing case must tant be based his reasonable of freedom from intrusion, or his legitimately being in the automobile at search, the time of the not alleged, because of “right to possess” property interest the automobile. which,
Fourth
rights
Amendment
are
ones
personal
like some other
constitutional
not be
rights, may
vicariously asserted. Simmons v. United
States,
States
Jones v. United
390
supra. The search
home,
party’s
cause,
of a third
property
even if without probable
can
be the
basis of a
claim
defendant
for the exclusion of evidence
305, 232
v.
thereby.
Kirkland
State
obtained
365
(defendant,
automobile,
passenger
codefendant’s
held to have no stand
automobile);
ing
search of
Kendrick v.
State
163
(defendant,
Ind.App.
in passenger
seat of codefen
automobile,
it);
dant’s
held
have no
to object
search of
v.
Butler
State
(defendant,
154 Ind.App.
N.E.2d 772
stan
ding
of;”
next to
neither owned nor “was in control
had
it).
no
See
contest search of
Payne
also
Ind.App.
I conclude that
no
challenge the search
of Tackett’s automobile. The record
reveals that
was not
time of
at the
of the automobile
not in possession
He was
owner.
Rather,
*9
search,
the search.
time
to
prior
reasonable
or even at a
of
at the time
station
custody
at the Auburn
was in
Carpenter
no
alleged
proprietary
Carpenter
to suppress
In his motion
the search.
automobile;
only the
his motion contains
interest
or possessory
no
custody
alleged
possessory
in police
While
allegations.1
bearest of
automobile,
suppress
motion to
on his
hearing
and at
interest
in the
his use of the
extent of
to show the
attempt
made no
Carpenter
not obtain
the belief does
In these circumstances
automobile.2
to
sufficient
interest
Tackett’s
enjoyed an
in-
of freedom from
expectation
him
afford
a reasonable
addition,
standard an-
under that
standing fails
In
his claim to
trusion.
States,
of the diamond
Possession
supra.
nounced Brown United
I would thus
offense.
Carpenter’s
essential element of
was not an
basis that
on the
seizure in the instant case
the search and
uphold
it,
the basis
and not
challenge
lacked
can
hearing
suppression
Amendment
at
erroneous Fourth
trial.
surfacing
facts
be validated
at