*1 discharge motion for and that was filed time object set. date that not been presence This contention is untenable view of his scheduling acquiesced January time he 13th at which February 5th, pretrial date the cause conference filing day early beyond trial seventieth Obviously to be motion. the trial date was at sub some date February acceptable 5th. sequent was not If that object incumbent him to the first Eelator at opportunity. denied. writ was JJ., Arterburn, Hunter, DeBruler
Givan, C.J. and concur. 420. Reported at 328 N.E.2d
Note. — Madden, Jr. Indiana. E. Melvin 3, 1975.] June 773S133. Filed [No. *2 Rushville, Clarkson, Hubert Wickens,
O. Jack of Don of Greensburg, Gaynor, counsel, Greensburg, James K. for of of appellant. Sendak, Attorney Dwyer, General,
Theodore L. Robert E. Attorney Deputy General, appellee. (Appellant) J. Defendant was convicted of
Prentice, degree imprisonment in murder the second and sentenced to years a of term not less than fifteen nor more than twenty-five years. validity upon The conviction rests predicated upon a purported search warrant was a showing probable by upon hearsay cause an affidavit based upon knowledge information, rather than facts within the acknowledged argument of the affiant. oral requisite to a valid evidence conviction de- upon from search made stems fendant question, obtained, that such evidence was the warrant subsequent that search or in searches that either in for evidence obtained been made but in that search. not have therefore, a We, are not faced with situation where the evi- erroneously admitted, although only dence, cumulative possibly harmless. Although preferably by probable cause to be shown affiant, our under within may, nevertheless, upon
statute warrant be based hearsay. cases, however, In such the re strictly quirements of the statute must be adhered that in case to. have determined there was We consequence, finding and that as a adherence
225 acceptance, only upon have been based cause by the affiant the conclusions drawn than others, supplied to rather him the information issuing authority by him drawn upon the conclusions of nevertheless, but, information from such both related conclusions affiant. These the conclusions of cor- informants to the persons. As to him other matters related and to rectness of conviction. consequence, must reverse this provides that 1, 11 Constitution Article of our State § “* * * only upon shall be issued search warrants * * supported affirmation Prior oath or mentioned, the enactment of the statute above 9-602,1 being prob 35-1-6-2, Burns Ind. Code § § predicated facts then requirement to be able affiant and not in the Rohlfing State, Ind. him. v.
personally known to 191, McCurry 148; State, (1967) 249 Ind. N.E.2d *3 greatly re the liberalized 227. The statute 231 N.E.2d issuing by permitting the warrants quirements such grounded upon upon information based be probable cause to dangers Recognizing hearsay. in hear the inherent credible specific Legislature incorporated require say, however, the 1. 9-602—Ind. 35-1-6-2. Affidavit —Contents form —Evi- Code § probable arrest shall dence of warrant or be cause. —No justice peace, judge any of the of record, issued is filed with the until there judge any city an and the to be magistrate’s the of court or court court or place describing affidavit, particularly to be the house or searched particularly person things describing for, the or to be searched substantially alleging thereto, the in relation arrested, and offense that and has cause believe such that the affiant believes concealed, person things there or that the are be searched for as are to setting offense, and forth the facts then said to be arrested committed in hearsay, information based on credible knowledge the affiant hearsay, probable constituting credible the cause. based on When supplied by information affiant contain reliable affidavit shall unnamed, following: shall person, and it contain named or a credible person spoke (a) that the credible with Affirmative knowledge contained therein. personal matters person. personal knowledge credible (b) (c) facts within The credibility knowledge facts within The person. the credible constituting
ments the statute assure into that issuing credible in the mind of the authority merely and not mind These of the affiant. requirements specific simple designed are and were credibility assure that determination of be can and will that of the made judgment goal of the The affiant. is that issued warrants be only upon probable cause, preferably by shown but in any event information reliable. The believed to be determination cannot made first without determining the likelihood of correctness of such informa tion, issuing and this determination must also be made authority merely rather than the affiant.
To assure “information,” upon those warrants issued than facts, rather only hard issued reliable information, supplied by person, credible requires supply statute the affiant following* with information: (a) person Affirmative the credible spoke the matters contained therein. (b) The facts within the of the person. credible (c) The facts within the affiant’s as to person. requirement It (a) will observed calls for the affiant, requirements of the (c) conclusion but (b) and issuing authority call It is from these for facts. facts that the independent (1) conclusions will draw his as to the credi- bility supplied information to supplied affiant and whether not such personal knowledge. from facts within his *4 function of the affiant in this situation primarily of one relaying factual per- information from the who has sonal of it to make the “probable judgments cause” determination. The are to merely those of of and those require eliminate to less the warrant. To would seeker destroy judgment “* * * cause constitutionality procedure. magistrate,’ ‘neutral detached must be determined and competitive engaged enter ‘the officer the often and not ” States, Spinelli ferreting prise of out crime.’ United 410, 415-416, 2d 584, 21 L. Ed. 393 U.S. 89 S. Ct. 637, 643.
We turn now determina- made, tion of if it enabled was to determine issuing authority the determination make opinion judgment judgment, own of the affiant.
“AFFIDAVIT Oldham, Indiana, Greensburg, of good swears that “Jon items, certain believes has believe that and to-wit: portable 7%,"
“1 saw Model SP Falls electric Millers Remington SL9, saw, number “1 model serial chain RD3666, color red and white green nylon garden hose “1 25 foot Unico being items in a which occurred said taken day June, in or the 11th are concealed about Madden, Street, Jr., Greens- 512 Bennett house Melvin E. Decatur, Indiana, County burg, situate in the State constituting the Indiana. That probable cause as follows: was the Indiana Police. It “I am detective for City Greensburg be- reported tween the by burglarized. Police that sometime midnight 7:00 of 12 o’clock a.m. hours June, 1971, day owned the Farm Bureau Store 11th County Association Farm Bureau The Decatur among reported missing, items Certain were investiga- my during above. That those items listed them burglary, reported people me been has tion of Madden, Melvin Jr. be credible that one E. I believe who was in possession items stolen from Farm certain said Madden, E. Melvin Jr. resided That Bureau Store. Bennett presently resides in a house located at 512 *5 City Greensburg. per- Street in the affiant has' This sonally recovered the items one of the Farm stolen from Miller, Bureau Store from Mrs. Robert mother of the defendant. Miller stated this Mrs. to affiant that the stolen given (her to Mr. husband) by item was Robert Miller the defendant.” outset, At the it will be observed that the affiant does not purport personal knowledge purport- to have of the matters ing give probable rise to cause for issuance of the warrant. alleging good He commences that he believes and has belief, question cause to certain facts. believe We do not his question believing, nor do we faith in so but issue is or whether affidavit contained the factual required which, as- statute — suming true, authority, issuing them be would warrant beliefs, also to arrive at does, fact, conclusion exist. To make determination, solely we must look to' the affidavit to (a) determine spoke informant informants purporting give of the facts rise they spoke opinions; cause —not that from beliefs or (b) personal within of the affiant’s facts informant or they informants —not what he believe, but they know, (c) what within the knowl- edge of affiants credibility of his informant or concerning credibility. informants —not what believes paragraph second of the affidavit sets forth the in- authority issuing formation was bound act, that concerning is facts known to the affiant credibility of his informant or re- informants the facts ported requirements himto them. it fulfil Does the statute? We think not. firstWe observe that the affiant Department member of the Indiana State Police but that report burglary of a him motivated to seek the City Greensburg warrant was made not to him but to the Department. information, Police then, being That tun- through affiant, neled to the Indiana Greensburg City policeman, it from the who received Department, it from which received some undisclosed Police source. report if the been made to
Even was, nevertheless, affiant, deficient in that information from which disclosed no its reported it? assessed. How did such informer know Who accept it ? the informer’s statements Is there reason to as cor- it, an- rect? observe hear it from Did informer about *6 other, imagine mystery it The sur- or fabricate it? same description reportedly of the articles stolen. rounds allegations concerning matters We next come re- ported reported It items to the affiant. was to him certain burglary possession stolen in the in the were of the defendant. Again, items in These were described elsewhere the affidavit. report? person how credible was such did the How who re- ported possession affiant such know of it—and what does issuing the informant know about that will aid assessing credibility. in allegations subsequent affidavit,
From learn in burglary in the items stolen recovered that one was by Robert Miller Miller the affiant from and that Mrs. Mrs. the defendant. We are was mother of also advised given by her husband the item had been defendant. supplied concerning the Again, affiant no information supply any credibility Miller it Mrs. nor did information matters she If she knew of related him. how gift present was made she was when and observed the rely transaction, officer was entitled her However, came report. if she such information from hearsay personal it not else, was someone to her. acceptable hearsay search warrant under the amended
The Ferry State, (1970) supra, statute, was discussed 27, Ind. 262 N.E.2d and information that was hearsay “multiple to the affiant was said to ‘totempole’ hearsay” insufficient as a basis finding probable cause. A casual reflection reveal that will hearsay an affidavit made supported by ear the affiant cannot a recitation of knowledge” personal “facts informant, within be circumstances, the informant no knowledge of the facts.
We hold that the affidavit that the basis for formed finding cause for the issuance war- rant following was insufficient reasons: (1) allegations The that a had occurred were supported reported it spoke personal knowledge allega- affiant with tions be personal knowledge of facts from which such reasonably inferred. (2) report burglary having The of a been committed in the ear of the affiant. The affidavit contained no of facts within
the affiant’s who as to the reported burglary. (4) allege affidavit did affirmatively that Mrs. spoke personal knowledge Miller the defendant given the stolen husband, article her nor did al- lege any facts within her from which *7 fairly it could be sonal did, fact, inferred that she per- have knowledge gift the transaction. The affidavit contained no of facts within knowledge the affiant’s as to the of Mrs. Miller. of the enumerated, Because deficiencies above there was nothing upon the the face of affidavit from which cor- the rectness the conclusions the truth of the fac- Therefore, tual assessed. au- thority could not have made a determination relying upon without conclusions stated in alleged the correctness affidavit and of matters as facts which only hearsay, were in the ear of the but in the ear affiant as well. reversed and judgment of trial court is proceedings inconsistent with for further
remanded opinion. Arterburn, J., concur; dissents Hunter, JJ.,
DeBruler and C.J., Givan, opinion in concurs. Dissenting Opinion opinion majority place an feel will J. I Arterburn, pro- any barrier to warrant insurmountable workable by this presented I feel the obstacles cedure in Indiana. opinion requirements will to make an trapped in our own enmesh extent that us an technicalities. opinion police example, officer should
For holds alleged or named have sup- persons from whom he received ported credibility by point. In other witnesses their on hearsay, by hearsay words, credibility supported is other on requirement end on such other than and where do we a simple person that the affiant credible? statement believes the
Secondly, is requirement do where we end with that all hearsay unacceptable except supported testi- mony supported by cred- evidence that turn is Undoubtedly a ible? This officer was detective. he went to burglarized premises, easily he could state in Yet, going say is that the Decatur Farm he affidavit. how burglarized? property is Association the owner Bureau Secretary go going office for Is to have State’s he rely hear- inspection incorporation of the record of an corporation say? any is case does he know How except general hearsay property the owner of any believes credible? How does he know he missing except upon the statement property one employee, one he assumes assumes is the owner or inventory, may relying upon charge all clerk in whom missing as to To themselves items? me an affi- *8 certainty for a search warrant does davit not need the proof just proving for crime at trial. me is To this one get problems little innumerable isolated technical in we into attempting opinion to use the set in this for standards forth might add, a I know, warrant. how ex- does he cept by hearsay, occupied that the defendant or held got premises when he search warrant? Does he need credibly supported testimony separate set out in a affidavit point maybe on copy this a certified recorded deed — a copy agreement? rental Must all little these detailed items be included an affidavit for a search warrant that hearsay proof so have affidavit that is with facts beyond just uncertainty, all merely or is it still for belief ?
I police would think if I that were a officer I have right believe, going a to to the Decatur Farm Bureau manager Association, burglary although the word of the a might might rely not have have hearsay other missing I as items so forth. ought right think the have the to assume officer the correct ownership hearsay and the of the Farm Bureau name hearsay. is built even that on I think he would have if right merely sign door, on assume even though probably hearsay, put is up and the sign hearsay. on did it based my things opinion, many
In too in this life of ours negate hearsay hearsay based in the fashion opinion that this does. The fact that Gerald Ford is President United States as based far as I am him, concerned. have never I seen nor seen his commission or confirmation. of election
I believe that an
states,
the affidavit
does,
case
sources
the information in the
opinion
affidavit are credible in the
oivn
given
mother
said he
defendant
lawnmower
father,
husband,
credible and
her
stolen
that was
(which
standard
is our
average
on the street
man
*9
accepting
at
laugh
cause)
at us for
burglary.
investigation of a
face value
opinion.
must
from this
I
dissent
For the reasons stated
C.J.,
Givan,
concurs.
Reported at
Note. — Heating of AAFCO Indiana Relation Superior Conditioning Company, The Lake and Air Inc. Sitting Chicago, Two, at Court, Indiana Room East Judge Superior Two, Baran, Court, Room John G. of Lake Sitting Chicago, at East Indiana. Filed June
[No. 375S67. 1975.] Silverman, Neinzer, Robert E. Jr., Marvin L. of East relator. Chicago, for (B-G), J. Pursuant to Ind. A.
Artbrburn, R. O. Relator Petition for Writ After a filed “Verified of Mandate.” appear, hearing Respondent did at we issued follows; pertinent part alternative read writ