*1 —fairly re- expenses remained Well, the teach-out “A. same, fairly the same. mained record, Hartman, you, if “Q. me ask Well, Mr. let interrogatories question you answering recall this- Eighty ‘Question. Two Thou- You claim One Hundred Eighty Ninety Dollars Four Four Hundred sand alleged discrepancy damages resulting from the Cents deposits. supposed prepaid tuition and actual costs of between instructing (teach- unanticipated students Are part costs) prepaid of their tuition had all or out who damage No.’ component claim? Answer. of this Now, is that a correct answer? — answer because
“A. That’s correct “Q. enough. right. the fact of the matter All That’s Now you your damages Hartman, predicating is, Mr. are alleged you pur- that when fact Plaintiffs thought college you had this the sellers chased prepayments and, in taken out a certain amount of they fact, you pre- now claim that received more had you thought payment received, than had correct? right. “A. That’s
“Q. damages you the difference is the amount And alleging? are Right.” “A. “benefit,” however, designated clearly con-
This
buyers
tract,
complain.
and the
cannot now
We conclude
exist,
no
affirm the
errors
and we
of the trial court.
Garrard,
Hoffman, J.,
concur.
J.
Reported at
Note. —
Jerome Clark v. State of Indiana. January 13, Rehearing February Filed 3-975A205. denied [No. July 20, 1977.] 1977. Transfer denied *2 Bechert, Defender, Robert Deputy Wayne, S. Public of Fort appellant. for Attorney Sendak, General, Wesley Wilson,
Theodore L. T.
Deputy Attorney General, appellee. Defendant-appellant J. Jerome
Hoffman, charged by unlawfully possessing information with a con- substance, trolled to-wit: heroin. Trial to the court resulted finding guilty, ain custody and Clark was sentenced to the Department of Correction period for a determinate years. subsequently He filed a to motion correct errors court, which was overruled the trial perfected this appeal. sole issue be decided is whether the trial court er-
roneously overruled Clark’s in-trial motion suppress during a search
heroin, which was seized to arrest. incident favorable to most us record before
The evidence in the on suppress reveals that ruling the motion trial court’s on and Gon- Wayne Hoover Officers Fort Police June Wayne. At Fort patrol in downtown were routine zales on dispatch a radio P.M., approximately officers received 4:00 Hospital had Joseph’s stating security guard at that a St. prem- leaving hospital subjects” observed “two number bearing license a 1974 Indiana in a black ises Cadillac 9700; black”, one of them was “[t]hey and that 2D handbag. Ap- handgun a brown armed with a concealed in later, the above proximately officers observed minutes five traveling on Harri- occupants north described automobile and response stopped to the officer’s Cadillac son Street. The appel- signal, whereupon driver the officers both the asked get place their hands on the lant out of the automobile a brief search trunk. Officer then conducted Gonzales *3 a automobile’s failed discover either brown interior but to handbag gun. approximately time, Arm- or a At Officers this strong Pyne and arrived at the scene. companion step up under his to Clark asked and
The officers Hoover then awning to rain. Officer it started an because had simultaneously identification, and radioed pair for asked the any warrants were out- whether headquarters ascertain subject. at the scene were standing The officers for either outstanding for Clark as was arrest warrant that an advised appearance a appear for a court on of his failure a result taken into would have Clark traffic violation. Because warrant, outstanding arrest Officer custody pursuant to the thoroughly person and an Armstrong his discovered searched containing proved to what later be heroin. vial amber colored that vial heroin should have been contends the and First, that the initial he contends suppressed for two reasons. illegal. He bases this contention on stop was of the vehicle alleged complete police dispatch, to-wit: “the infirmities of the any physical description occupants of the of the absence vehicle, and fact that the information was received the credibility reliability established, a source and were not whose * * Secondly, stop he that if initial contends the intensity scope lawful of the officers’ action and “[t]he unreasonable, and, therefore, made this detention unlawful under the Fourth Amendment.” illegal stop the initial vehicle
Clark’s contention
Upon direct examination Officer Hoover
is without merit.
had
testified
he
chance to observe two black
fitting
people
description
in an automobile
the
and
corresponded “exactly”
this
dispatch
he
supplied
and
Officers Hoover
received.
Gonzales were
color,
with the
make
license number of the
and
vehicle con
taining
subjects,
carry
one of
reported
black
whom
ing
weapon. Approximately
a concealed
five
after
minutes
receiving
dispatch,
the officers observed the described
investigation.
it
vehicle
detained
When the exactness
description
coupled
of the vehicle’s
is
with the timeliness of
observation,
the officers’
fact that
did
the officers
not have
physical
an
the benefit of
exact
description
occupants
of the
inconsequential. See,
Luckett v.
Although Clark asserts information was received credibility reliability from a where source were not estab acting upon lished, when information received in dispatch, radio required reliability credibility ascertain initial necessity of the rely source information. Moreover he must system the communication headquarters *4 where, here, compels as an use of automobile officers to greater speed act with hesitancy. and less Manson, et al. v. cert, (1967), State 249 53, 801, Ind. 229 denied, N.E.2d 390 995, U.S. 1198, 88 S.Ct. 20 L.Ed.2d reasonableness
662 investigatory stop in information received of an based against dispatch a radio must therefore be measured objective Terry (1968), prescribed in 392 standard v. Ohio 1, 1868, 1880, 889, at 20 L.Ed.2d where 21-22, at 88 S.Ct. U.S. the court stated: at the moment the facts available the officer “[W]ould a man
of caution in the belief’ that ate?” seizure or the search ‘warrant of reasonable appropri- the action taken was Viewing light of the actions of the officers in the above stand- bar, per- ard and in the context of the at are not case we argument illegal. stop suaded the initial was (1973), Unlike the situation in Jackson v. State Ind. App. 662, officers received a where N.E.2d “tip” an from unknown informant and made an arrest in parking lot, at bar tavern the case involved reliable report hospital guard dispatch security derived of a carrying was that one characters a concealed weapon which in the absence a license would constitute only stop unusual conduct but an observed herein crime. speedy investigation with a concern for was imbued using suspects public streets, potentially an automobile on deadly weapon. Accordingly with a armed we determine justification ample experienced police there was officers to suspicion detaining exercise reasonable pursuant Clark Terry supra. Ohio, See, Williams, et v. State al. 457; 261 Ind. 307 N.E.2d Collett v.
App. 185,
Having lawful, stop decided that the initial we must stop scope determine whether the was related to the circum- justified stances which it in the first instance. contends gun officers that when the failed to find the or the handbag, power to detain him brown ended. power investigate extinguished
The officers’ cursory the fact Officer Gonzales’ examination of the
663 front seat area of the to reveal automobile failed gun handbag. here, either Where, the or the as predicated upon subject action is a belief that a is unlawfully armed, any potential common sense demands investiga threat of any violence be before further neutralized tive potential action is threat undertaken. Once the to the officers in the neutralized, instant case was were autho rized, pursuant (Burns 1971, Ed.),1 to IC 35-3-1-1 Code inquiries concerning make reasonable identification of the Luckett v. companion. supra. Clark and See, his State, headquarters any Officer Hoover’s call to check radio on outstanding scope warrants within this reasonable of the
investigation.
upon discovering
Moreover it was
outstanding
a warrant was
for Clark’s
arrest
actually
custody.
he was
taken into
Thus
con
the
text of
outstanding
an arrest based on an
warrant
there is no
question concerning
unqualified authority
arresting
Sizemore agent to
person
See,
search the
of the arrestee.
App.
549,
(transfer
159
We scope therefore conclude that of the detention was reasonably precipitating circumstances, related and suppress properly motion to overruled. uniform, “When law enforcement officer in a distinctive plain having in officer clothes after identified himself as law enforcement reasonably infers, from the of observation unusual under conduct light experience, activity the circumstances of his that criminal been, any being, has person, or is about to be committed observed public place may stop person in a said such a reasonable period may inquiries concerning time make reasonable the name of explanation and address such and an his action. Said stopping inquiry shall be limited to those matters under jurisdiction particular enforcement officer and when conducted specified custody within the limits herein shall not constitute official grounds liability or arrest and shall not constitute arrest for civil for false imprisonment.” added.) (Emphasis or false be affirmed. court must trial
Affirmed. P.J., opinion.
Garrard, concurs; Staton, J., dissents Opinion Dissenting it opinion, majority since from the P.J. I dissent Staton, for electronic probable cause “standard” of creates new at all. no standard new “standard” communications. This *6 of transmis- form and mode to its Its credentials are limited accepted, it makes easy. If accepted, If it makes searches sion. unnecessary. I can meaningful probable a cause standard judg- therefore, the court’s accept reverse trial it; I would grant to sustain a trial and new ment with instructions suppress. the motion to
I. Came Probable reported Joseph Hospital guard security A from the Saint handgun a men with that he had observed two electronically handbag. report This in a was concealed brown receiving dispatcher. the transmitted After transmitted the radio, police report police officers observed their car over stopped it. In their in the transmission and the car described handbag handgun. they search, and no After no brown found they occupants the car for identifica- search, asked the outstanding the warrants. One of occu- tion checked for outstanding Clark, pants, arrested on an bench warrant inspection sticker violation. A search of his for a vehicle possession officers revealed the a con- the trolled substance. determining probable whether cause exists
The test (1973), App. 404, in v. 155 293 set forth Ind. Walker 35,41: N.E.2d probable cause to an arrest whether test for make
“The at the facts circumstances within the time arrest knowledge they the of the officers and of reason which had ably trustworthy information a were sufficient to warrant prudent arrestee had committed believing man of in the reasonable caution committing an offense.” (My emphasis.) 603, 271 Smith v. State Ind. N.E.2d 133. arresting absolutely officers had no information from any
transmission or from in other source that the men car had committed or were about to commit an offense. only they information had was that the two the car men in suspicious looking judgment security hosiptal in the a guard they might possession be in aof brown hand- bag handgun. which concealed a The officers did know carry handgun. the men in the whether car had license Therefore, because, stopped by the two men were security guard hospital, at suspicious. looked State,
In Paxton 264, 275, 263 N.E.2d 636, 642 Justice Hunter observed: “Appellee, attempting to establish that offi- point cers cause to conduct the search out that appellant ‘suspicious Atherton and persons’ Silcox were Bishop
known to both argu- and Hutchison. We find this blatantly ment It day offensive. will be a sad indeed *7 court when this sanctions the per- detention and search of property allegation sons are on the mere that character.” by police Clark was not known either Their actions officer. solely upon were based the electronic transmission from the dispatcher.
In App. 662, Jackson 301 N.E.2d 370, posture a similar factual to Clark’s search is found. Judge Jackson, In Hoffman wrote: “. . tion to the A received from an . unknown [Police] source informa- that Fred carrying gun.’ effect D. Jackson ‘was a obtaining police officer, without a warrant . . . found sitting steering Jackson behind the wheel of an automo- parking requested lot
bile . . and . [a] ... Jackson to complied, the step Jackson out the automobile. When sticking pistol of his ‘observed the butt a out officers a
pocket.’ Thereupon, if he had the defendant was asked not, stating permit the carry weapon. Upon did he gun placed under Jackson was was confiscated and . . . arrest. % ij: # has reason that a officer who “It has . . . been held dealing presently he is an armed believe may dangerous a individual make reasonable search although may weapons he lack cause for arrest. upon However, must be more than . such search based . . suspicion. be a able A officer must mere ‘hunch’ ... he point facts from which could reason- to definite confronting armed ably the individual he is infer and, dangerous. . . . ‘tip’ from an unknown informer of relia- “A unknown may suspicion. create, most, bility at mere therefore We justified not the officers were in their ‘seizure’ find that Jackson information which anything absent whatsoever to corroborate they received. through unreasonable searches and “Evidence obtained (My (Citations omitted.) seizures not admissible.” emphasis). handgun did belt. Jackson police found in Jackson’s The permit. have police, did stopped their search When Clark was handbag handgun described of a or a brown as fruit bear the Yet, the was extended electronic transmission. search in the investigation could be until a further and Clark detained probable cause. without conducted
II. Conduct” “Unusual statute, majority’s reliance IC 35-3-1-1 misplaced. Ed.), justify the search is (Burns Code observation of the con- “unusual mandates statute officer who conducts the search made duct” *8 private security guard and not experience whose training may considerably be more limited. The statute does not cover unobservable electronic If transmissions. the trans- probable arrest, mitter does have cause to cause by merely sending can not be created an electronic transmis- suspicions, sion of someone’s which is all that has been done in Clark’s case.1 provides:
The [by statute “. . . observation the officer] of unusual conduct under the light circumstances and in activity experience, his that criminal been, being, has or (My emphasis). is about to be committed. . . .” security guard only suspicions. He knew of no activity criminal being planned or about to be committed. danger
The obvious inherent majority’s interpre- any reported tation of the statute is observation, (trained untrained; experienced inexperienced; or civilian, private guard, security similarly or other persons situated with some authority) could color of initiate an arrest or search of an- by merely telephoning other suspicions to the police dispatcher. station or the local experienced and trained required by the longer be statute would no needed. stopped by officers,
When one officer testified: “Q. you anything note Did unusual about conduct prior your the defendant searching him ? No, fairly “A. he seemed to composed. well along We got thought. I rather well “Q. any Had the defendant committed traffic violation? No, going “A. sir. Other than a block and a half in front squad lights a car with red and siren pulling and not opportunity.” over at the earliest By transmitter, the writer includes all authorized law enforcement dispatcher officers who send information ato for transmission.
III.
Conclusion
person and car
pretext
the search
for
trans-
probable
electronic
cause. The
suspicion, not
a mere
their car radio did not
over
the officers
mission received
suspicion
cause.
from
to
mutation
a factual
cause
merely
suspicions
someone’s
about
transmitted
facts
nothing
requires
more. The law
of another
conduct
probable cause to search. Less than
facts constitute
easy
prob-
create
searches.2 Less than
would
probable cause
illegal
suspicion
Mere
is
searches.
create
would
cause
able
reverse the trial
probable cause. I would
for
a substitute
grant
a new trial
to
judgment
instructions
court’s
suppress.3
the motion
sustain
Reported at
Note. — Shirley Cook, the Estate Administratrix Delma Mercury Company. Merchant, v. Lumber Deceased Ann January 17, Filed 1977.] 2-275A20. [No. Supreme also had addressed the issue: Court United States 2. The enough lay system suspicion for an officer to is our “Under better, so the Fourth Amendment citizen. ... It on a hands go guilty teaches, free than sometimes that citizens (My emphasis). Henry easy subject v. arrest.” United States 168, 172; 98, 104; 134, 80 S.Ct. 4 L.Ed.2d 139. U.S. Leroy App. Indiana Madison v. State Thomas 3. recognized Judge Lybrook two standards for an N.E.2d investigatory stop: stop (Burns Ed. authorizes a 35-3-1-1 Code “. IC ... reasonably infers, whenever ‘unusual conduct’ light experience, of his observations and on-the-scene activity being, A been, is or is about to be committed. has criminal investigatory applies stop founded when separate standard person, supplied another rather than the officer’s on information personal . . .” observation. State, supra, the trial court’s was reversed for In Madison overruling suppress. erred the motion court
the reason