*1 Paul E. of Indiana. 2-374A75.
[No. Filed June 1975.] Milan, Richard L. Indianapolis, appellant. for Sendak, Attorney L. General, Gary Theodore Crist, M. Attorney General, Deputy appellee. charged by Appellant Fingers affidavit
White, J. degree, convicted first the offense term of trial, to an indeterminate and sentenced jury after now Having appeal, he years. perfected twenty ten to breaking argues establish evidence is insufficient that the *2 physical ob by him, evidence was entering that certain and himof unlawfully, in-court identification and that an tained procedure. identification pre-arrest tainted We affirm. that appellee most favorable to the
The evidence shortly 2 P.M. to home before (Smith) came a housewife open in trunk automobile its Thunderbird with find a white got trunk, driveway. standing there A closed the man her way, her out of the her to move car and motioned car receiving there, asked her Mike lived and He if which she did. away. negative reply he thanked her and When she a drove open she a house found the door forced and went to her missing. speakers, television, tapeplayer tapes and and some a County Marion the Sheriff a radio alert called and She put Indianapolis the out on Police radio band. The alert negro. Shortly was for a a white Thunderbird driven tall approximately away city police after 2 P.M. and miles a (Tirmenstein) officer saw a white Thunderbird three general riders, negro, coming all that from direction. He partner and turned following his car, around and started the radioing same time asking for assistance their and notify dispatcher to office. Sheriff’s The car at a shopping center, passengers (who the two were later deter- hitchhikers) got out, mined to be and the car continued. A police stopped few further on blocks car, obtained (Fingers), identification the driver advised him that a just ear his was bim burglary, like involved and told they like would him to wait until the sheriff arrived. later deputy A minutes brought few sheriff Smith and her husband scene. She identified the car as the one driveway her Fingers been in had and as the man who Fingers driveway. in her had been formally placed then opened The trunk under arrest. of his car was both Smith and her husband identified contents as the articles taken from their residence. had been argues neither the contents of the trunk nor any testimony about them should have been evi- received into they illegal dence the fruit since were of an search that fol- illegal original lowed arrest. His contentions are that the stopping of his car was an arrest made without warrant probable cause, legal without if even the arrest be is not it search because was without warrant. arrest, Fingers’ argument As to the is that then facts known to Tirmenstein were not such as man would warrant a prudence of reasonable caution and to believe the driver of car he observed had committed a criminal offense. Supreme Court has very question
Our considered different cases. In Luckett two 738, policeman was advised radio of a fleeing suspects green
and that the in a Chevrolet with *3 prefix license of a 82J. No mention was made the number of suspects. Thirty or race of the crime, minutes after the at range possible a the flight, green location within of Olds- a prefix traveling license mobile with the of 82J in direction away stopped. the In Williams v. 457, Ind. police 307 N.E.2d were advised robbery radio that Lafayette had occurred West and suspects, negro males, that the two fled in an automobile heading north on figuring U.S. 52. Two officers, State Police might suspects heading the Chicago that, be and so, they possibly if would turn off U.S. 52 so onto U.S. 231 Highway, to reach an positioned as Interstate themselves an intersection on U.S. 231. The third car had northbound only occupant, driver, one thought visible police the but the negro they the Improved driver was and the followed car. lighting conditions a town further down the road convinced police negro they one of the officers that the driver was a and stopped the car. police held that the the court Luckett and Williams
In both although car, stop to the cause officers had exist. not then for an arrest did cause the hold Luckett and Williams we the On basis Tirmenstein were known to facts and circumstances Fingers’ give probable cause to to him sufficient car.1 Fingers argues search, opening
As to the though been of his car unlawful even he had trunk con- formally placed arrest. The evidence is under Fingers flicting to the whether consented as to search, merely acquiesced search, to the ob or or jected dispute consequence. search, If but is of no there is for search cause of a car on highway, may police either search the without war car impound rant or the car until a warrant can obtained. be Maroney Chambers v. 399 U.S. 90 S.Ct. supra. State, 419. Luckett L.Ed.2d After both Fingers police and the car been had identified Smith the unquestionably had cause search to the car.
Fingers’ argument second is that the evidence is insufficient prove to that he broke into entered he the house since only driveway. seen in the Fingers’ If first
argument concerning contents trunk his argument successful this second would some have However, merit. breaking since a entering by someone clearly eivdence, Fingers established the presence of driveway his car in presence combined articles stolen from the house in the car is permit sufficient to the trier of fact infer participated entering. breaking and *4 hold, interpret 1. We do not do not Luckett and Williams hold- as ing probable required to make an cause arrest for an investi- gative agree stop. concurring opinion “probable We with the cause exacting
for an
required
arrest
is more
standard than the ‘reasonableness’
investigative
stop.”
say, however,
for an
do We
when
met,
proper
say
police
“reasonableness”
had
test is
it is
to
“that
officers
probable
cause
the car.”
Fingers’
argument
is that
final
Smith’s in-court
identifica
pre-arrest
tion of him
tainted
confrontation
alleged
identification. This
timely
error was not
objection
proper
testimony
raised
to Smith’s
trial,
during
it
cannot be raised for
first time
in
(1972),
this court. Johnson v. 257 Ind.
577;
(1972),
Davis v. State
The is affirmed. Sullivan, P.J., concurs; Buchanan, J., opinion. concurs with
Concurring Opinion J. I concurin only the result case. this Buchanan, Judge interprets White Luckett 284 N.E.2d Williams v. State Ind. permitting 307 N.E.2d as the use of the term “probable investigative cause” in connection stop. with an This is not so. justification
The use of a cause test in in of an vestigative stop prohibited specifically by Williams v. State, supra, which reversed on majority opinion transfer (District Two) court adopting cause test. doing, In so then adopted Chief Justice Arterburn Justice language Hunter’s State, supra, stating Luckett “in question situations of this sort is ‘whether the (a police facts known officer) ... time he the car sufficient to warrant a man of reasonable ” investigation caution in the belief that an appropriate.’ concurring Justice Hunter points in the result dis- up the tinction between cause for arrest and reasonableness investigative an detention of said, a motor vehicle. He “Probable cause arrest is not the central issue us. before Rather, we are with an examination the rear- confronted investigative sonableness detention of a motor vehicle.” (Emphasis supplied).
He further indicated Luckett v. State did formulate distinguished of reasonableness to standard be for arrest. cause *5 equiva hairs, or of splitting semantic
This is not a matter of moving vehicle is investigative detention of a An lents. known justifiable of whether the facts on basis moving stopping are suffi police officer vehicle time to the caution in belief man of reasonable cient to warrant a requirement investigative appropriate.1 The an than exacting is more standard an arrest cause for investigative stop. Wil required for the “reasonableness” an Luckett, supra. importance The distinction liams and Supreme opposite by the result reached is witnessed stringent applying the less of reasonableness standard Court application opposed to facts of the Williams case as majority this court. of the cause standard misleading Therefore, utilize it inaccurate and I deem investigative “probable in connection with the term cause” stop. did so. Luckett Williams not To do meld investigative stop arrest cause for an cause for dangerous intermingling principles. The is dissimilar may easily get along path distinction between them lost usage. of common
Mote.—Reported at
[No. 1975. denied 1975. Transfer denied December 1975.] Terry 1. The basic ease in this field is v. Ohio 392 U.S. Supreme which following was relied on our Court in Williams. Also Williams and Luckett Elliott 173.