*1 Ferry v. State Indiana. petition rehearing No for Filed October filed.] 869S191.
[No. Riggle, Jeffersonville, R. Robert appellant. for Sendak, Attorney General, Theodore Wedding, David S. Deputy General, Attorney appellee. for appeal brought by an appellant, This
Hunter, C.J. Ferry, William Bernard from a conviction in the Circuit Clark possession drugs Court posses of the crimes of of narcotic drugs sion narcotic with intent to sell. Said offenses are (1969 found at Ind. Ann. Supp.). Stat. 10-3538 Cum. § finding guilty jury upon had before Trial was Indiana charged, was sentenced (10) (2) than ten nor more less than two Prison for not (5) more nor than five years possession, and for not less *2 sell intent to years possession with twenty (20) than filed timely trial was drugs question. motion for new A the support alleging grounds as error by appellant numerous it by court and trial the motion was overruled thereof. Said brings this overruling appellant of his motion the fromis appeal. following error alleged specifications of the
Appellant trial: motion for new his
“ contrary jury to law. is (1) verdict of the That the by suffi- jury is not sustained
(2) That the verdict cient evidence. overruling Defendant’s the
(3) the court erred That directed (appellant’s) motion for a verdict. overruling Defendant’s erred in (4) That the court suppression (sic) evidence that motion for at the trial.” made arguing specifications court, appellant this is his before
In brief (1 doing has so )-(3) motion for new trial and of his argument. supported them in one Since grouped and same, substantially by specification each is question raised accordingly. argument appellant’s opinion deal with will this following question: Essentially before us involves the the issue support to the issuance of the search probable cause there Was by police in this case ? resolution of The obtained warrant appeal appellant’s since all of question critical to pur incriminating introduced at trial was discovered evidence probable cause Unless search warrant. a contested suant to and the evidence be invalid existed, would the search warrant been excluded as demanded have should thereunder obtained suppress. to in his motion by appellant reveals follow- to the State most favorable The evidence ing on six went to events: November officers Apartments Boulevard, #19 Yorkshire 725 Eastern at Indiana, Clarksville, pur- to premises conduct a search of the day. to a purpose suant warrant issued for that earlier apartment occupied The his wife. their officers arrival at knocked address They door and identified themselves. a voice heard tell they them to wait a minute approximately did so for longer to seconds. The officers then decided no to wait apartment. They commenced enter the were slowed progress appellant’s wife, Ferry, in their Mrs. who was (cid:127)pushing attempting keep on the door out. positioned
Two of the officers had themselves at the rear appellant’s apartment during nf the above-described events. 'When the other officers knocked on the front door of the apartment themselves, according appellant, identified rear, one of the officers in the threw the window blind *3 back, window, opened shaving raised the screen and laid a ground. case out on the retrieved the officer case and (entered apartment conducting where the other were group their search. At the time the first officers made apartment, they appellant their entrance into the observed running They pursued toward the bathroom. him and im- mediately placed him under arrest.
Among during the items ap- discovered the search of the pellant’s apartment were:
(1) spoon powder a with white found in and the bathroom analyzed later to contain cocaine. (2) syringe a needle and found the bedroom. syringe
(3) living a found behind the couch in the room. (4) syringes two found on the kitchen sill. window (5) needle, syringe, a 20 cc. in a and valve found dresser drawer. (6) shaving case placed which outside his found window was contain 157 small folded tin foil squares containing powder, and numerous bottles filled pills. subsequent A laboratory analysis revealed cocaine, and the packets that the tin foil contained cocaine, morphine derivative contained [a
bottles alkoloid, be- opium], dilaudid, dolophine, lieved opium pantopon. be Kentucky Louisville, Gutman, Robert a veteran of the Officer Squad, that the cocaine contents Narcotics testified Police “bagged” shaving case, all if for sale would be worth “bagging” is typical $2-3,000 in the market. He stated that powder squares. tin foil done in small amounts small exactly way packets He further testified that this was shaving his wrapped appellant’s case and that way had experience only officer this he as narcotic’s opinion packaged his seen cocaine flakes for sale. It was ever packets appellant’s packaged sale. case were for leading to the above search The affidavit search warrant signed by Kemp of Clarksville Officer Ronald M. applicable Department with the then accordance Repl.). (1956 reads terms of Ann. It Ind. Stat. §9-602 follows: FOR SEARCH WARRANT
“AFFIDAVIT ) State of Indiana County of Calrk j sworn, has being duly that he Kemp, swears Ronald M. are certain there reason and does believe that to believe codeine, Morphine drugs, located narcotic to-wit: Apart- apartment, Yorkshire Clarksville, in a certain to-wit: concealed ments, Blvd., Clark apartment 19, Eastern unlawfully drugs County, Indiana, and said narcotic are
possessed in violation of the laws of the State and used grounds belief Indiana and that reasons affiant’s searching apartment there is cause for said are as follows: [sic] *4 Sgt. That said affiant has information from Robert Gut-
man, Bureau, Department, Narcotics Louisville Police that Ferry Haysley positively and Melvin Bill were identified Iowa, Clinton, drug city said prior in a said store in state drug burglarized, that (sic) the time store was that being Ferry positively occupant identified Bill was an city state, in said that motel call made from
31 the Yorkshire Iowa, Ferry’s residence at Clinton, Bill Ferry Indiana, said Bill that Apartments, Clarksville, narcotic Haysley users and sellers are known and Melvin Department, that the afore- drugs mentioned Iowa, the Louisville Clinton, drug burglarized (sic) in said store dangerous drugs, to-wit: narcotic and and certain drug store, and Morphine from said and Codeine stolen Ferry flew reasonably Bill that the said that from believes affiant day Louisville, Kentucky Clinton, Iowa, to on 31st October, Ferry Bill with him said has dangerous drugs, Morphine and narcotic and to-wit: said place Codeine at his of abode aforementioned. Kemp Kemp M. M. Ronald Ronald /s/ day me 1st No- Subscribed sworn to before this vember, 1968. P. Marra Michael /s/ Justice of the Peace” Although Kemp appeared Officer justice before the gave peace testimony, oral the record indicates that no testimony information was beyond offered already con- tained in the affidavit. Probable cause therefore was estab- lished on the basis of this information appellant’s and it is wholly contention that it hearsay. was based being That so, according appellant, under Indiana law existence at legally time the affidavit support insfficient to the issu- challenged. ance of the search warrant here leading regard The case in requirements Indiana with to the probable cause for a search Rohlfing warrant v. State 88 Ind. E.N. 2d 148. This court there held that: “The search warrant this case was not sufficient to show
probable cause for the reason that
part
the material
showing probable
affidavit
cause was
hearsay.
based on
The
judicial
must
determination of
required
cause as
herein
based on
hearsay.”
be
facts and not
supra)
announced
is not the rule as
U.
362
S.
Supreme
v. United States
Court. Jones
E. 2d at 229.
725,
231 N.
257, 80
The rule in this 9-602, Assembly. the Indiana General Ind. Ann. Stat. § supra, amended in March of 1969 to include following language: good cause “. . . and that the affiant believes and has things are there that such as are searched for
believe concealed, said to be person arrested committed or that to be knowledge offense, setting forth the facts then hearsay, of the affiant or information based credible *6 constituting hearsay, plied probable credible the cause. based on When sup- affidavit shall contain reliable information the by unnamed, person, the affiant credible named or following: the and it contain shall allegations (a) person Affirmative that the credible knowledge spoke personal of the matters contained therein. (b) personal knowledge The facts within the of the person.
credible (c) knowledge The facts within the affiant’s the as to person.” credible Although the search warrant in this case must be tested in with the law as it accordance existed at the issued, time it was that it defective we believe even if the aforementioned applicable. amendment were
In the case at bar clear it is from both the affidavit and testimony affiant, Kemp, of the Officer that the informa- finding in a tion which resulted wholly cause was hearsay. based on In fact it multiple was based on or “totem- hearsay. pole” trial, At Kemp questioned Officer as follows:
“Q. you Well, what information had received sir?
A. We had received information that he had narcotics possession. his Q. From whom? Sgt.
A. Robert Gutman.
Q. Sgt. get And where did Gutman his information? Age.
A. From Detective get Q. Age information sir? Detective And where did aof from a Lieutenant He received his information A. Clinton, Iowa. police department of Q. right sir, you, you Kemp, did Officer tell while All Judge oath, Marra, under there was were Clinton, Iowa, who told an officer Lieutenant Louisville, sergeant Louisville, Kentucky, told a who information; Kentucky, you you tell told did who that? him Yes, did discuss the we matter.” A. inquiries further made record reveals no were ever Clinton, authorities Iowa Clarksville verify accuracy the information of its
Department any information never verification of the There was source. personal Neither the facts in the affidavit. within the contained person Clinton, knowledge credible Iowa officer] [the knowledge credibility specified. to his the affiant’s nor meeting only fall the stand does the affidavit short Not Rohlfing State, supra, it but also fails under ards of legislature. enacted The fact rule more liberal proved in the information contained affidavit *7 appellant’s apartment upon a search be correct to invalidity warrant as issued. of the search cure cannot properly be established a warrant must cause for Probable not as a result of its fruits. the search before reluctantly are constrained hold Although so we to we do warrant, a result of the search seized the eveidence hearsay wholly information, on was obtained as it based upon appellant’s excluded have been illegally and should The failure to do so is reversible suppress the same. motion to granted should have the motion for court the trial error, and new trial. judgment reasons, the of the trial court foregoing
For reversed. be should
Judgment reversed. with Givan, J., dissents Jackson, JJ., concur. DeBruler Arterburn, J., concurs. opinion in which
Dissenting Opinion agree majority opinion in cannot I Givan, J. upon was obtained in this case warrant this The search case. Clarks Kemp, police officer one Ronald the affidavit of received Kemp that he had stated affidavit Officer In his ville. Gutman, Bureau of Narcotics from Robert information another Department, Louisville suspect a Iowa, Clinton, as a positively identified affidavit, drug burglary. The information recited store majority opinion, be would in full is set out which which, police if received communication official sufficient him probable cause for patrol, be any would officer while Patterson suspect a a without warrant. See arrest 520, 290, E. 255 N. 2d 20 Ind. Dec. (1970), 253 Ind. Dec. Ind. et al. v. State Ind. Manson 2d 801. 229 E.N. why type information when received
I see no reason through police channels communication not official should be of a search warrant. the issuance sufficient for majority opinion applicable in the the rule recited I think information received is from other where the to situations validity. However, and is of doubtful sources than official city cannot obtain search war- say one police communications from upon another official rant based require bringing would which city a situation is to create testify magistrate city before a a distant from witnesses issued. could be This would result warrant a search before Rapid systems communication situation. impossible an apprehension totally for the useless criminals be would information be long if such cannot relied distances over obtaining warrant. search for the of the United States has stated that Supreme Court
36 engaged investiga-
observations of fellow
a common
tion are a
applied
reliable basis for a warrant
one of
111,
their
(1965),
102,
U. S.
number.
v. Ventresca
380 U. S.
684,
13 L. Ed. 2d
The Court of of New York in Ventresca observed: controlling “The principle seems to be that it is neces- not sary making for the officer the arrest relia- to know of the bility information sufficient be, himself, possession informer or to probable provided to constitute cause that he acts the direction of or as a result of com- superior
munication with a or brother officer or another police department provided that the as a whole were possession of information sufficient probable to constitute * * *” cause make the arrest. People Horowitz (1967), 55, v. 21 N. 453, Y. 2d 233 N. E. 2d 455. Supreme facing Court of Illinois in this same situation
has observed:
“
great
guilt
‘There is a
difference between that which is re
quired
prove
probable
in a criminal case and
cause
search,
for arrest and
as well as in the tribunals which
matters,
therefore,
determine such
a like
difference
quanta
proof required
and modes of
to establish such
guilt
Draper
States,
cause.
v. United
S.U.
307,
329,
327; Brinegar
79 S. Ct.
3 L. Ed. 2d
United
States,
160,
338 U.
S.
S. Ct.
People Brinn 32 Ill. 2d 204 N. E. 2d would, therefore, I hold that the search prop- warrant was erly issued and therefore the trial court did not err in over- ruling suppress the motion to the evidence thereby. obtained *9 affirm the lower court. I would
Arterburn, J., concurs.
Note.—Reported N. E. 2d
Mims Indiana. 6, 1970.] 469S83. Filed October
[No. Bayliff, Harrigan, Maugans, Bolinger, Cord & Dorn Van & Andrews, Kokomo, appellant. for both Sendak, Attorney General, Peden,
Theodore Mark Ken- McDermott, Bruney, Deputies R. Michael neth M. Attorney General, appellee.
DeBruler, J. appeal is an from a This conviction for during robbery the commission of a murder violation Burns Ind. Acts ch. Stat. Ann. 10-3401. Trial § § County by jury in the Carroll Circuit Court imprisonment. life was sentenced is that
Appellant’s first contention the trial court erred in