This case is an appeal from a conviction of violating the Indiana Controlled Substances Act, IC1971,35-24.1-4.1-6 (Burns Code Ed.). The Appellant, Norman Mills, was charged and found guilty of possessing heroin, of a weight less than ten grams, for which he was sentenced to three years imprisonment. On appeal, Mills has made four assignments of error, properly raised and preserved, for our determination. 1 We herein affirm his conviction.
*434 On the basis of an affidavit recounting the affiant policeman’s personal observation of the execution of two “controlled buys,” a search warrant was issued for the residence, shared by Mills and a woman friend, in which the sale apparently took place. The search warrant was executed the same day. The officers met Mills as he was leaving his residence, identified themselves, and réturned him to the house where the officers read Mills the search warrant and informed him of his rights. The officers then searched the residence. One officer was designated evidence custodian and as objects were found they were brought to him. The woman with whom Mills shared the residence was not present. On the basis of the items found, namely bindles of a substance which proved to be heroin and paraphernalia including syringes, Mills was found guilty of possessing a controlled substance.
Mills’ first assignment of error is the admission of evidence seized pursuant to the search warrant, of which he questions the validity on four grounds.
Mills first attacks the warrant on the ground that the affidavit stated no facts relating to the credibility of the “informant.” IC 1971, 35-1-6-2 (Burns Code Ed.) provides that where an affidavit is based on hearsay the affiant must state facts within his personal knowledge as to the credibility of the informant. Strict compliance with the statute is required.
Madden v. State
(1975),
*435
*434
In a similar case,
Hignut v. State
(1973), Ct.Sp.App.Md.,
The informant’s story, once “credibility” is established, becomes little more than surplusage. If the informant had been nothing more than a robot or a trained ape, the directly observed “controlled buy” — with the informant as a mere mechanical agent — would have been sufficient to establish probable cause.
303 A.2d at 181 .
We agree that where the controls are adequate, the affiant’s personal observation of a “controlled buy” may suffice as grounds for a finding of probable cause.
Probable cause was determined, in the present case, solely on the bais of the affiant’s observation of the controlled buys. There was no mention in the affidavit of any statements of the “buyer” as to what occurred inside the residence. His credibility was not relied on, therefore the affidavit cannot be said to be based on hearsay and the directions of the statute are inapplicable.
Mills next claims the warrant to be defective for lack of specificity as to the items to be seized. The warrant in this case consists of a printed form with a number of blank lines on which the affidavit was copied in full. Below these lines is printed the following:
And the Court having examined said affidavit and being fully advised in the premises, now finds there is probable cause for the issuance of this search warrant.
You are, therefore, commanded, in the name of the State of Indiana, with the necessary and proper assistance, in the day time or in the night time, to enter into the premises described in said affidavit and there diligently search for the said............. ... aforesaid, and that you bring the same or any part thereof found on such search, forthwith before me, at my office, to be disposed of according to law.
Mills bases his argument on the failure to enter anything in the above blank.
*436 *435 IC 1971, 35-1-6-3 (Burns Code Ed.) provides the following form for *436 search warrants:
State of Indiana )
) SS:
County of Marion)
To any constable, police officer, sheriff or conservator of the peace, greeting: Whereas, there has been filed with me an affidavit of which the following is a copy: (Here copy the affidavit.) You are, therefore, commanded, in the name of the State of Indiana, with the necessary and proper assistance, in the daytime or in the nighttime to enter into or upon the premises described in said affidavit and there diligently search for said goods and chattels, to wit: in said affidavit described and that you bring the same, or any part thereof found on such search, forthwith before me at my office, to be disposed of according to law.
Given under my hand this_day of_, 19_.
The example indicates that the affidavit can be copied into the search warrant, and that the necessary specificity may be found by referring to the affidavit. In this case, the affidavit clearly specified that the warrant is sought in order to conduct a search for heroin. The affidavit, being copied into the body of the search warrant in compliance with the above statute, is a part of the search warrant.
McAllister v. State
(1974),
Mills further claims the warrant to be defective in that he was named therein as Norman Miller rather than Norman Mills. He argues that because of this error the warrant does not adequately describe the place to be searched, thus imbuing the officers executing the warrant with fatal discretion. In
Snedegar v. State
(1926),
The place to be searched and the things to be seized were particularly and definitely described, and, although there was a mistake in naming the person in possession of the things to be seized, such mistake will not invalidate the warrant or render illegal the search, for it is the certainty of place and the specific articles there possessed which are the vital elements of a valid search warrant. Article 1, § 11, Constitution of Indiana; section 8338, Burns’ 1914. Naming *437 the person in possession, as was done in this case, may be treated as information for locating the place. In short, the sole purpose of a search warrant is the discovery, at a particular place, and seizure by the officer charged with its enforcement, of specific articles which constitute or contain evidence of crime.
150 N.E. at 368 .
In the present case, both the place to be searched and the items to be seized are clearly and definitely described. The residence is described both by street address and physical appearance, and the woman with whom Mills shared the residence is correctly identified. This is a sufficiently specific description to negate the uncertainty created by misnaming Mills.
Finally, Mills contends that the failure to include an inventory of items seized in the sheriff’s return of the warrant requires that the evidence be suppressed at trial. This precise question has not been ad-dressed in Indiana.
2
IC 1971, 35-1-6-4.1 (Burns Code Ed., Supp. 1977) requires that a return on a warrant be directed to the issuing court or judge, indicating the date and time the warrant was served, and including a list of items seized. It is the near-unanimous opinion of those jurisdictions ruling on this issue that the failure to comply with a statute requiring the attachment of inventories to returns is merely neglect of a ministerial duty and neither invalidates the warrant or the search nor affects the admissibility of the items seized. See
State v. Montoya
(1974), N.M.App.,
*438 Mills’ second assignment of error is the refusal of the trial court to compel disclosure of the identity of the “informant” who participated in the controlled buy.
In
Roviaro v. United States,
“... no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”
353 U.S. at 62 .
The privilege of the State to withhold the identity of informers must give way “(W)here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause . . . .”
Id.
at 60-61. The Court noted two kinds of cases where the issue may arise. First, in those cases where probable cause to search without a warrant is based on the communications of an informant, the Government would be required to disclose the informant’s identity unless there was sufficient independent evidence on which to base probable cause.
See, e.g., Scher v. United States,
In light of this decision, the federal courts have developed the general rule that where an informant is a participant or witness to the crime, his identity must be disclosed. Where he is neither, the privilege against disclosure operates.
See Hawkins v. Robinson,
*439
In Indiana, general policy favors nondisclosure of informants’ identities unless such disclosure is relevant and helpful to the defense or is necessary for a fair trial.
McCulley v. State
(1971),
Mills next assigns as error the admission of paraphernalia found in the course of the search. It is his contention that no proper foundation was laid and no adequate chain of custody established. Before any evidence is admissible it must be relevant. In the case of “real” or “original” evidence, relevance depends on a showing that the item in question is indeed that item which was involved in the transaction the subject of trial, and that its condition is substantially unchanged in any material aspect. This may be accomplished by iden
*440
tification testimony at trial.
McCormick, Evidence
§ 212, p. 527 (1972 ed.). See
Smith v. Crouse-Hinds Co.
(1978),
The record shows testimony of two officers to the effect that each had found syringes in specified places in the residence which he had delivered to the officer acting as evidence custodian. The evidence custodian testified that he himself found a cigar box in the kitchen containing paraphernalia, and that the officers who found the syringes placed these items in the box in his presence. He testified that no one other than these officers placed anything in the box. He further testified that he personally kept possession of the box, took it to his office at the jail, sealed it in an envelope and placed the sealed envelope in a safe until trial. He finally testified that the items were in substantially unaltered condition. We find this adequately accounts for the continuous whereabouts of the evidence from the time the State acquired possession until the trial. Graham, supra. Therefore, the evidence was properly admitted.
Mills’ final contention is that the evidence establishing possession is insufficient to support the jury’s verdict. The term “possession” contemplates either actual or constructive possession.
McGowan v. State
(1973),
Constructive possession is defined as “the intent and capability to maintain control and dominion” over the substance in question.
Thomas v. State
(1973),
(N)ormally, without more, no “natural probative force” can be placed upon mere presence at a place where narcotics are found. One could just as easily be present innocently as guiltily. Although evidence of presence would certainly be relevant, it alone would not be sufficient to sustain a conviction.
296 N.E.2d at 418 .
Therefore, the rule in cases of non-exclusive possession of premises on which narcotics are found is that such possession does not give rise to the inference of knowledge absent evidence of additional drcumstances warranting it.
Johnson v. State
(1978),
In determining on appeal the sufficiency of evidence, this Court will not weigh the evidence but rather will consider only that evidence most favorable to the judgment and all logical and reasonable infer-enees arising therefrom. If there is substantial evidence of probative value to support the verdict, the verdict will not be disturbed.
Burrv. State
(1977),
*442 The record before us discloses that on July 1,1976, a search warrant for the residence of the Appellant, and the woman with whom he shared the residence, was executed. As the police officers approached the house, Mills came out the front door. The officers identified themselves and told Mills that they had a search warrant for his house. They then took the Appellant back into the house, “sat him on the couch inside the front door,” read the warrant to him, and then conducted their search. The residence was described as a series of adjoining rooms not separated by doors or partitions, thus Mills could watch the progress of the search. A sack was found on the mantle over the fireplace, behind a picture which leaned against the wall. As an officer looked into the sack Mills was heard to say, not directing his comment to anyone in particular, something to the effect that it contained “dummy bags.” The sack was found to contain aluminum foil bindles which, when field-tested, did not show the presence of heroin. When later tested in the police laboratory, the bindles were found to contain traces of an opium derivative. In addition to these bindles, the searchers found used syringes in plain view on the dresser in the bedroom, men’s and women’s clothing in the drawers of that dresser, two photographs of Mills found in the bedroom, a brown paper sack of unused syringes and a cigar box containing paraphernalia in the kitchen, and three bindles in the drawer of a small box found in the bedroom. Mills made no further comments as these items were discovered. The bindles were found to contain heroin.
The record, further, shows testimony of the woman with whom Mills shared the residence. She testified that they both were living there at the time the warrant was served, that they shared the bedroom, and that both kept their personal possessions there. Further, she testified that she didn’t know either the paraphernalia or the heroin was there. She stated that she didn’t know if Mills had placed the items there, just that she herself had not.
We find this evidence to be adequate to support each element of the State’s case. Mills had possession of the premises and therefore the ability to exercise control over the items within. Because possession was shared with another, the requisite knowledge cannot be inferred from this alone. Considering in addition the evidence of Mills’ knowledge of the dummy bindles and the woman’s disclaimer of ownership of the *443 bindles containing heroin, however, the jury had an adequate basis to infer that Mills knew of the heroin’s presence and character.
Finding no error in the above circumstances, we affirm the Appellant’s conviction.
Lybrook, P.J. concurs (sitting by designation).
Robertson, J. concurs (sitting by designation).
NOTE — Reported at
Notes
. A fifth error raised in Mills’ Motion to Correct Errors is waived on appeal, as it was not argued in the Appellant’s brief. Ind. Rules of Appellate Procedure, A.P. 8.3(A).
. In
Carson v. State
(1932),