State Ex Rel. French v. Hendricks Superior Court

We, therefore, general principle follow laid down in the above cases Boos and Branham and hold that once appealing party has his exercised election make

application for bond in the Trial Court Court power things will retain necessary to do all proper bond, including raising enforcement said lowering Any of the same. abuse of discretion part on the regard subject only Trial Court in that to review by interlocutory appeal. Court Court will This exercise jurisdiction concerning appeal no direct bond unless appealing party filing waits until after trans his cript assignment application of errors to make to this appeal bond. mandate prohibition

Petition for is denied. writ of DeBruler, J., Hunter, JJ., concur; C. Arterburn and Jack- J., son, concurs result. Reported E. 2d N.

Note. — Superior ex Court, French v. Hendricks State rel. Judge. Helton, rehearing May petition for 369S44. Filed 1969. No [No. filed.] Ryan O’Brien, J. Tind Thomas & Dechard, Danville, for relator. Palmer,

M. Dale & Palmer Hinkle, Danville, respondent. Jackson, J . This matter to us way comes of a Verified Temporary Petition For a Writ of Prohibition wherein relator prays respondents prohibited pro- restrained from ceeding any further in a certain cause entitled The State Indiana v. Richard Allen French. Such cause is numbered respondent 69-3 on the SCR dockets of court and is an affidavit charging relator with the crime of auto theft. appears January 12, 1969,

It that on relator was arrested stealing warrant without automobile. The arrest was by Trooper made Indiana State County Deputy Marion responded dispatch Sheriffs who radio subject that an automobile and had stolen abandoned it in vicinity had High Highway of Road and U. School S. petition alleges

The verified that said affidavit was filed respondent January 13, 1969, court on that relator was day January, 1969, of 13th on arrested on a warrant respondent filing out of court of issued as a result of alleges judicial Relator the affidavit above mentioned. that no made, hearing inquiry was had to determine the existence prior of probable cause to the issuance of the re- January 13, on alleges 1969. Relator lator’s arrest further day January, 1969, respondent court, 13th of on the learning years age, jurisdic- relator was seventeen of waived to the Juvenile Court of County, tion of relator Hendricks Indiana; day January, 1969, thereafter on the 21st of sitting Hendricks Circuit Court of the Juvenile Court County, Indiana, hearing held a

Hendricks waiver relative charged by to the relator and the crime with which he was to, above referred at the affidavit the conclusion of which County, Indiana, of Hendricks Juvenile Court transferred jurisdiction charge of relator and the on which he arrested was Superior County, Indiana, of back Court Hendricks required where relator was to be to stand trial as an adult. 1969, respondent January, day On the re- 22nd jurisdiction in assumed cause No. SCR 69-3 in said court. Being counsel, appointed advised relator did not have the court pauper attorney O’Brien Thomas J. relator set $3,000.00. at bond for relator the sum February 10, 1969, Thereafter on relator filed Motion Quash warrant, supported by memorandum, on the arrest grounds that there no determination made of existence Further, cause before the warrant was issued. of the failure to prior reason determine warrant, to the issuance contended that void, scope outside the issuance thereof was of law and Indiana, legal County, of Hendricks had no the Sheriff authority authority arrest relator of such warrant. February thirty days more than after

On heretofore mentioned had been arrest warrant issued more thirty days had been arrested after relator virtue than through Indiana, by thereof, State Prosecut- Circuit, ing Attorney 55th Judicial be filed for the caused to Superior of the Clerk Hendricks in the office Indiana, entitled County, Cause Affi- an affidavit “Probable davit.” Quash affi-

February 19, 1969, filed a Motion to relator Affidavit,” supported by mem- “Probable Cause davit entitled grounds that the affidavit in itself orandum on 13, January issued tacit admission comply constitutional standards 1969, with the did not was, of therefore, issuance warrants violation of the Fourth Amendment the United States Constitution and Article Section 11 of the of Constitution the. State of Indiana.

February 20, 1969, respondent Judge argument heard oral Quash on relator’s Motion to arrest warrant and on relator’s Quash Affidavit,” Motion to “Probable Cause and overruled both motions. urges Prosecuting Attorney

Relator inter alia that the legal way said Judicial District “That stated there is against French”; refile Allen case Richard in view County of his incarceration in the Hendricks Jail the statement Prosecuting Attorney, of pauper the fact he unable raise even bail, denial his constitu- $10.00 illegal jurisdiction rights, assumption tional of this by respondent irreparable do will relator harm prays that there Temporary issue from Court Writ against respondents prohibit- Prohibition and each of them ing restraining each and proceeding both of them from any assuming, taking further or said exercis- and/or ing authority jurisdiction cause, in or over said etc. argument presented

The Court heard oral on the issues day March, herein the 10th and took the matter give opportunity under advisement order full fully questions carefully presented hereby. all consider clearly present In order to issues we deem advisable pertinent incorporate herein, part, wording the exact beginning pleadings, with the affidavit some filed herein. part of made a

The affidavit was to and attached relator’s follows, A and reads petition, marked Exhibit to-wit: “THE INDIANA STATE OF Affidavit for

vs. French THEFT Richard Allen Jail) (In me, day, EEMEMBEEED, this before IT BE Prosecuting Attorney 55th Judicial PALMEE M. DALE personally who, being duly Ferrell came Circuit, Walter D. says that, oath, he and his sworn informed day on the 12th Janu- believes, Eichard Allen French county of Hendricks and ary, A.D., State of at and in the the crime of there Indiana, then and committed feloniously unlawfully knowingly, ob- and he in that theft property of control over unauthorized exerted

tained Mercury of the Ferrell, 1955 automobile to-wit: D. Walter intending deprive D. Walter $110.00, said value property, of said permanently of use and benefit Ferrell being contrary to form of the statute in such the same dignity against peace and provided, and and of Indiana. made cases of the state Ferrell Walter D. /s/ me, day January, before this 13 and sworn Subscribed A.D., 1969. M. Dale Palmer /s/ Attorney Prosecuting Judicial 55th Circuit Approved me: Attorney” Prosecuting Palmer M. Dale /s/ filing response issued B Exhibit is the per- thereon, A, return Sheriff’s of Exhibit follows, part to-wit: reads tinent COUNTY, INDIANA, HENDEICKS ss: OF “STATE INDIANA, TO SHEEIFF OF THE STATE OF THE HENDEICKS COUNTY OTHEE OF- OE ANY PEACE INDIANA, OF THE STATE GEEETING OF FICES hereby arrest EICHAED AL- commanded to You your bailiwick, may HE be found if FEENCH LEN Judge body of the Hend- you before have HIS so that ricks instanter, Court, Superior then and to answer there charge of THEFT and on a abide of Indiana the State thereon and return this writ. of the court order court, WITNESS, and seal of 13th the Clerk this said January, day 1969. Jr., Gambold, John Clerk.” /s/ day Jan., 1969. served hand this Was “Came by reading presence as commanded to and in the and hear- ing of the within French, named Allen Richard taking (sic) my custody. her into by leaving Was served as commanded a true and correct copy place at the usual of residence of the within named day Jan., Done

Merle Funk County” Sheriff Hendricks copy Exhibit C is minutes relative to court’s pertinent part cause and in reads as follows:

“MINUTES OF THE COURT 1-13-69 Approved (H.I.), affidavit filed Warrant ordered issued Co., to of peace Shf. Hend. other officer of the Ind., State of $3,000.00. Bond at set Warrant issued ac- cordingly. 1-13-69 Comes cuting Attorney; by , State now of Indiana Dale Palmer Prose- M. defendant, comes also the Richard Allen French, person attorney arraign- and without an for Defendant,

ment. open Richard Allen French states in years age Court that he of on this date. The Court being duly advised now this matter to transfers the Juvenile Court reference to with said defendant and the bond is $3,000.00. to remain in the amount of 1-22-69 having Court received the Clerk’s certificate that Hend- County ricks Juvenile J-69-4 Court Cause No. has juvenile jurisdiction waived and transferred said cause County

back Superior Court, Hendricks the Court now jurisdiction defendant, of reassumes French. Richard Allen 1-22-69 Court having jurisdiction, reassumed comes now the State of comes Palmer, Prosecuting Indiana M. Attorney, Dale defendant, also the Richard Allen ar- French for raignment. Defendant the Court that he does not advises attorney. being advised, appoints have an duly Court now pauper attorney Thomas O’Brien as for De- defendant. custody of Hend- fendant remanded to of Sheriff County good ricks until sufficient bond the amount

of approved. each has been furnished and $3000.00 2-10-69 Quash Comes now defendant Motion to and files Arrest (H.I.) Support Warrant and Memorandum of Motion Quash (H.I.). matter Arrest Warrant Court sets hearing day 11:00 o’clock A.M. on 20th of Febru- at (Clerk ary, notify attorneys record) 1969. all of 2-14-69 Palmer, Prosecuting Attorney now H. of Comes Dale 55th Judicial Affidavit Circuit and Probable Cause files (H.I.). being duly Court advised this matter sets hearing February, day at 11:00 A.M. o’clock 20th (Clerk notify attorneys) all 2-20-69 Indiana, Palmer, Prose- Comes State of Dale M. cuting Attorney, defendant, Allen also Richard comes French, person attorney, pauper Tom O’Brien. with argument quash Court hears arrest warrant motions ruling thereon under affidavit and takes advisement. 2-24-69 being duly advised, Court quash motion to motion to defendant’s overrules warrant and overrules defendant’s quash original probable cause affidavit. finds that the approved by filed which the Prosecut- had been ing Circuit, along Attorney the 55th Judicial showing cause affidavit was sufficient causé for the issuance of for the arrest. Court (sic) further aside finds that it would be set useless another the warrant to issued hereinbefore and then order view could not issue in defendant fact discharged done since the de- and no harm has been custody under has been in fendant Sheriff prior original Court, filing there- affidavit. quash fore, rant war- does now overrule motion to defendant’s Tom for arrest of defendant. The Court now advises arraignment O’Brien, attorney for defendant, is set 25, February 1969, Mr. O’Brien 10:00 A.M. on requests with his the matter additional time to discuss 1969, arraignment 17, client, until March is continued (Clerk notify Prosecuting Attorney, 9:00 a.m. Sher- at O’Brien) (emphasis added). if and Tom 2-26-69 Defendant files (H.I.). motion continuance verified grants continues being duly said motion and advised Court (Clerk 21, 1969, at 9:00 a.m. until March this matter Prosecuting Attorney).” notify attorneys all showing juris- D is the Exhibit Clerk’s certificate waiver of juvenile Superior diction and transfer thereof back Court and here is omitted is referred to Exhibit C at above. Quash E copy of the Motion to

Exhibit Arrest Warrant supporting having memorandum heretofore referred February been filed This 1969. exhibit is omitted as it previously has been summarized. F reads as

Exhibit follows: “STATE OF INDIANA In The County Hendricks

Hendricks State Superior of Indiana ss: 1969 Term

vs. 69-3 Allen SCR Richard French No. Cause PROBABLE CAUSE AFFIDAVIT WALTER FERRELL, being duly says sworn, D. first that: January 12, On young I my saw man take Mercury driveway. my caught automobile from I chased and him, recovering car, got away. he but He later caught by the Indiana State Police and Rich- identified as ard Allen French. WALTER FERRELL D.

/s/ Walter Ferrell D. me, Subscribed Palmer, and sworn to M. before Dale Prosecuting Attorney, Circuit, day 55th Judicial February, DALE M. PALMER /s/ DaleM. Palmer Prosecuting Attorney My Expires: Term 31,1970 December CERTIFICATE certify foregoing copy I have served O’Brien, Mr. Probable Cause Affidavit attorney Thomas J. French, by defendant, de- Richard Allen positing copy County receptacle provided in the of same in the February, day Hendricks of Clerk’s Office 1969. PALMER M. DALE

/s/ M. Dale Palmer Quash copy Exhibit of Motion Affidavit Titled G is signature omitting heading, veri- Affidavit,” “Probable Cause support fication and motion reads memorandum such pertinent part as follows: spe- defendant, French, appearing “The Richard Allen cially O’Brien, attorney, J. for herein his Thomas purpose filing quash probable of affi- a motion to cause whatsoever; davit, purpose now re- and for no other does

quest quash above the arrest warrant following grounds: entitled cause on the which, if contains facts That the affidavit in itself true, legal prosecution of bar to would constitute defendant, provided authority 2. That there in law days filing thirty (30) probable of an affidavit already after an arrest warrant has been issued.” have, length, We at some set out the record in the case ap- It at bar delineate the here determination. issues pears presented: questions clear to are here us two showing a neutral

A. cause before Must a and magistrate precede of a law- the issuance detached ful warrant? yes, make B. If to A then who must the answer cause, existence determination of showing may be made within how constitutional, existing statutory and the framework case law? proposition A be answered must

It clear to us 1852, been, a constitutional has since the affirmative. This 1, 11 of the Con requirement in Article embodied § Indiana, is identical State of stitution Constitution Amendment of the Fourth provides part “No United Article that: States. § supported issue, probable cause, upon warrant but shall describing affirmation, place oath particularly or person searched, thing seized.” to be Consequently, provides since Constitution showing except probable cause, cannot issue probable of of cause necessarily precede issuance must the the warrant. proposition B, long standing

As to above, rule in it is a Indiana judicial that the probable a determination of cause is magistrate, judge to by

determination a be made v. State and Wallace not a ministerial determination. (1927), 317, Kinnaird 199 E. In Ind. 157 N. v. State (1968), 506, 500, 251 242 Ind. N. E. 2d judicial stated that, requirement “a determination a goes to the heart of the In Kin Fourth Amendment.” “magistrate” naird the term type to describe the used judicial of showing probable officer before whom of cause must made, be make and who must the determination cause, probable “magistrate” ap existence of word peared (1958), in Giordenello v. United States U. S. Aguilar (1964), v. Texas U. S. and was supra. carried State, over into v. Kinnaird Kinnaird In “magistrate” given word interpretation. a broad As used in “magistrate” judge that case the word of includes court of accept process, pleas, state authorized to issue to hear judgments. and determine cases and to render The magistrate magistrate” “neutral and a detached if at the issuing time of the warrant, personal of the he has no in terest performing judicial the case other than of duty determining of presence probable of cause before issuing Further, judge warrant. the mere fact that a has upon showing ruled probable of necessarily cause does not disqualify judge trying from that case on its merits. may showing probable

The manner in which the of cause case, be is clearly indicated, the Kinnaird think, made we supra. years For of our courts this and sister successfully cope been states have able problem probable preliminaries of to the cause warrants, quite of issuance search reason it seems us expect respect able to them to do warrants. so with showing opinion, may In our made be setting ways. may several It form an affidavit enough underlying forth facts circumstances magistrate own enable neutral and to draw his detached showing conclusions to the cause. existence may also be trans testimony made sworn witnesses record, reporter cribed made matter testimony and which circumstances forth the facts and sets may judicial which the determination of be made. showing prob

However, setting forth the the affidavit obtaining not be able cause for the arrest need charges the crime the accused with same affidavit that is, in sought. Further, there for which his arrest is hearing determine opinion, our a no need for grand probable jury returned an indict where has cause probable showing grand jury by of ment. The return jury grand of the six members at least five of the cause as Therefore, returned. indictment can be must concur before indictment, returning makes grand jury, in since cause, probable of existence determination as by a neutral probable not be made cause determination need prosecution magistrate where the cases in those and detached by indictment. filing of question the effect Turning of now bar, hold we the case at Affidavit Probable Cause of the filed to and was sworn as the same inasmuch was days or more after the arrest thirty not have considered been and could not issued it was showing of a immediately aid of cause before or at the of time the issuance of the arrest warrant. We agree, filing with relator of such such at part late date ais tacit admission the State of Indi hearing ana that there was no or determination of prior to the issuance of the warrant for relator’s ar rest.

Therefore, must, do, we hold arrest warrant issued herein, record, illegally shown issued was showing in that issued without required by as is both the Constitution of State of Indiana and the State, Constitution the United Kinnaird v. States. supra; 1, 11, supra; Art. § U. S. Const. amend. IV.

Accordingly, January 13, 1969, since the arrest warrant of illegally issued, void, respondents it is null and

hereby discharge custody ordered to relator from said warrant.

However, custody “since relator been has of the Sheriff prior filing under original to the of the affidavit” {supra, entry 2-24-69) grant 6,P. that portion we are unable to prayer discharge seeking relator’s relief from cus- tody of County. petition the Sheriff of Hendricks Relator’s challenge does validity not or relief from the seek referred, question the court in its minutes and that us, express opinion is not before hence we here to the validity thereof. portion

That petition prohibit relator’s seeks respondents taking assuming, exercising any from or further authority jurisdiction by virtue of the warrant for relator’s arrests over the cause action entitled “State Indiana pending Richard Allen respondent v. French” now hereby as number 69-3 SCR denied.

DeBruler, J., concurs; J., opinion; Hunter, C. concurs Arterburn, J., opinion; Givan, J., dissents with dissents opinion.

Concurring Opinion. majority opinion Hunter, completely J . I concur only add and to because I minimize it wish to potential might confusion that arise from what dissenting opin- believe is in the misstatement facts Arterburn, ion of J.

I. hearing petition March Prior to on on this relat- papers there records this court were or before court original apprehen- surrounding ing the circumstances petitioner only facts January 12. The which sion of the the “arrest” of were before this court related to were January petitioner pursuant issued on was petitioner prosecutor seemingly had that assumed IS. petitioner’s stand legality incarceration would majority the dissent Both the fall warrant. on that arrest agreement If, fact, there so. this is not police of- “sight by a valid arrest” a warrant] [without petitioner’s in- January 12, the probable cause on ficer with even County be lawful Jail carceration in the Hendricks would illegally if was thereafter obtained. an arrest warrant considering hearing while After petition, before became of this obvious merits legality petitioner’s incarcera- we determine could original apprehension on Janu- surrounding his tion, the facts parties asked were then known. The have ary 12 would original surrounding the stipulate to the circumstances thereof, do In unable so. lieu were apprehension but agree” impossible stating “it is petitioner letter filed a filed facts, prosecutor these essential course, these neither docu- Of arresting officer. from findings by this a sound basis can serve ments for fact court. the forth spite this,

In the dissent has seen fit to set witness, prosecutor, and the prosecuting the the assertions of have simply do not “clear facts.” arresting We officer as regards cir- the the evidence the of fact as become triers surrounding petitioner’s original apprehension. the cumstances wisely determine majority, therefore, The refused has only legality the has decided instead to issue deal the petitioner's under warrant. the incarceration arrest “assuming majority an the that This mean that does not is stated necessary this case” as warrant was is being only judgment withheld on this dissent, the that but particular may a that be determined issue so that make an informed decision enough relevant information to has on the matter.

II. charging Noting The then the dissent affidavit. turns the signed by allegedly who also saw that it was witness petitioner “we crime, the that the dissent concludes commit stronger necessary are facts to show understand what cannot explain probable . does .” The dissent not how cause. magistrate possibly affiant have the known could the warrant date the arrest witness to crime language charging couched The issued. only Against Property states Act and it offenses petitioner perpe- believes” that affiant informed and “is attempted does the affidavit trated the theft. Nowhere even and, actually crime, affiant had infer witnessed problem in this case have been had, the entire could if it Rather, mentions only document even avoided. affidavit which so-called essential fact is this issuance of one month after was filed dissent, according is “an irrelevant which, even appears proceedings.” Thus, what step needless nothing more justice” than J., “travesty Arterburn, requiring only that the affiant allow rule Kinnaird magistrate by setting determine forth facts, essential hearing. either in an affidavit at a majority opinion way requires eye in no more than witness probable cause, require does but it that such magistrate cause be known who warrant. issues

Dissenting Opinion. majority opinion J . The in this case evades Arterburn, the real only issues and confuses the law in the concerned. field I considered this affidavits case on filed which uncontra- yet dicted, majority recognize refuses to these facts so proved previous in order to position. maintain their very in this case relator, facts clear that the Rich- escaped French, legal ard Allen had from the detention in Boys’ custody Indiana School time he at the was into taken having and arrested for stolen The owner an automobile. Mercury my automobile saw the defendant “take driveway. caught my him, automobile from I chased re- and got away. caught covering car, by but he He later was the Indiana State Police and Allen as Richard identified by arresting French.” further The facts show affidavit immediately officer that he was informed of the theft and arrested shortly car French for car theft after policeman vicinity in the theft where the car found. The was upon who arrested him acted information furnished him car, the owner French take who saw his car. That to cause under sufficient show old common law principles arresting officer to arrest French. case

There is misstatement facts in this claimed by Judge rely upon the affidavits I Hunter. uncontradicted case, blindly the majority filed recorded previous posi- to consider in their refuses order maintain French One who saw tion. owner car attempt by steal arrest- car. The other affidavit his ing officer, which reads follows: being duly “Larry Harshman, sworn his J. first says:

oath Trooper assigned I “1. Marion “2. am Indiana State to District County, Indiana. January 12, patrol High while on at That Indianapolis, Indiana, Street, School Minnesota Road and subject dispatch I a radio that a had stolen received car; and U. High Road that the owner had chased him to School Indiana, subject 40, Indianapolis, had S. jumped from car and ran. County Troopers, I, “3. State and Marion and other dogs searching Deputy area. police started Sheriffs with dogs subject, police Richard Allen “4. The flushed French, Morris Street. from behind house West subject, French, “5. The Allen handcuffed Richard Field, placed police I car him in a took Stout Love returned District the Police Detective Frank 9 State Post. subject Plainfield, Indiana. custody “6. I French The reason Richard Allen into took description. report car because the stolen receiving French don’t information relative to recall being Boys escapee handcuffed School until after he was patrol and in the car.” (not attorney case French in this stated It is true the agree upon impossible oath, however) under it was knowledge relator, French, the no actual had facts and that the time he ar- policeman mind” at “had his of what prevent However, does not French. statement rested are uncontra- considering affidavits which Court from accept duty the true facts. It is our do reveal dicted that evade just and not reach a decision the facts order to in this Court ever known the first time I have same. This the orig- in an affidavits filed consider uncontradicted to refuse to reach a correct the and in order to determine inal action facts result. facts without previously, uncontradicted these

As stated arresting the common for question probable cause at law show there could be I do not see how French. officer to principle.- common any question such an old law about the charging Thereafter the relator affidavit with the crime signed and sworn to owner who car saw French take the approved car. This and filed affidavit was prosecuting attorney, result an arrest warrant was issued thereon. there made If ever case in was a out an probable cause, affidavit for certainly in this existed case, where owner who makes him steal ear saw charging affidavit the offense plainly he saw occur. I stronger necessary cannot understand what facts are to probable show cause when the one who the crime com- saw unequivocal mitted swears in to it have To this words. then hold there probable cause this case issu- for ance of a warrant and that no can issue warrant appears travesty justice. case to me attorney prosecuting

The mere filed addi- an fact support tional cause order issuance appears me of a to be irrelevant step give proceedings, con- needless it no we need prosecuting attorney, sideration whatever. No doubt the be- of the v. in the case Kinnaird confusion caused State (1968), thought N. 251 Ind. it best E. 2d although file such an addition, affidavit of cause in there existed the case more sufficient from facts in than precaution cause for the The mere arrest. added the prosecuting attorney State, prejudice the should not nor controlling principle deter reference Court from the showing probable to the the arrest. facts regrettable feature, originally pointed my as I out in opinion State, dissenting case supra, in Kinnaird v. principles should not have stated in been decided majority opinion, since there was no clerk’s record before transcript judgment us in the The case and no record. could have been on that This dismissed basis. called Court, majority attention members it was but disregarded, they unnecessarily fit decide saw the ease causing much confusion principles are now so which uncertainty. again should be a case before us that here we have

Now legal police officer simple principle decided on upon the commission made an arrest reliable information of flight. (car stealing), felony with the We of a defendant tangents case, reach- go need out on to decide this not various ing unknown, Kinnaird decision In the out into untried fields. authority to “It is not our intention limit the it stated: arrests without make lawful enforcement officers to of law required”, are warrants in those where warrants instances yet statement. very case us before now contradicts amendment point me out that constitutional

Let first upon probable to, referred “no shall namely, issue but particularly supported de- affirmation and oath or thing scribing person or place to searched and be seized”, merely seize be used refers search warrants upon private things persons are are hidden which or who provision premises. purpose There historical for such is a war- in the does refer Constitution. It whatever not way Again in draw- going out of its rants. we find Court ing unnecessary enforcement law. restrictions in recognize preposterous law, principle of It Supreme however, that evi- upholds, States United illegally trial, no matter dence obtained cannot be used revealed to guilty the defendant how relevant how be, police officer be because enforcement should law letting In punished a trial. by not evidence used in be important more words, high feels that it other punish guilty There police defendant. than methods, separate if police such punishing means of without really such say does more about punish them. We shall no operation. theory propounded and erroneous now illegal, only affect If assume the it can we by a search based the admission evidence obtained nothing the arrest and more. In this ease there was evi- no produced dence any involved no search which evidence. illegal being There no search here and no evidence thus obtained to be offered defendant, trial of the as- illegal significance sumed arrest should have case causing duplication having than a of a other in efforts second hearing probable cause and an arrest warrant there- issued after. Layton (1968), 205, 489,

In v. State 240 Ind. N. E. 2d this Court stated: “It appellant seems that further contends illegal, appel- the lant itself, arrest the mere in for a fact if the tried, grounds is is sufficient trial. new The illegality only search warrant. admissibility of the arrest affects

evidence, as in of a It case does not right try affect the appellant. appel- of the state The point remedy appel- lant fails out what if would be an merely illegal. lant could be not tried because the arrest was illegal Must he be free in of set event an arrest? Must in defendant be returned and set free California or steps on the immediately courthouse and of rearrested under a valid warrant before he can be not tried? We do engage believe a court should in futile and idle mo- such judicial processes laughing tions. To do so makes the a public.” matter for the opinion, assuming The majority that an warrant necessary case, many ques- in leaves unanswered serious may tions create Apparently even new ones. the effect case of Kinnaird was to declare unconstitutional Burns’ provides 9-1001, which § that an shall issue charge filing prosecuting a valid criminal attorney, additionally there the reason must be a probable magis- hearing showing cause a disinterested before gives plainly prosecuting attorney the The statute trate. jurisdiction probable authority to determine cause when approves given he files it. the affidavit The reason prosecuting unconstitutionality attorney its is that the is not prosecuting engaged disinterested, “fer- but official in a (1948), reting United States out v. crime”. Johnson 92 L. S. Ct. Ed. U. 68 S. stating majority basically opinion

The inconsistent question magistrate that the who hears disinterested, in the Kinnaird case must be neutral and ferreting para- crime, one next not out when must opinion graph there is need that same “no states grand jury hearing determine where a a grand a jury neutral has A is not returned indictment.” “ferreting magistrate, engaged in fact in detached but majority theory me, under the out seems to crime”. It opinion, could between the action there be no difference respect grand prosecuting jury attorney a and that a hearing right of the defendant have charge issued. cause before and an arrest warrant is filed ferreting grand jury there are men on fact that six prosecuting at- out crime one case of a instead torney, no difference. should make question majority the opinion

The also leaves unanswered police a of- a officer whether or not law or enforcement ficer, he or he thinks violation hears when sees what is a law suspect fleeing he thinks credible a what is information guilty felony, immediately make has been a is entitled to pursuit probable and a determination and cause follow in making police Undoubtedly make the officer is the arrest. probable cause, he not neutral is a determination of and wording opinion, fact, is, of the individual in under the but officer, “ferreting enforcement out such crime”. Must law hearing pursuit have a his before therefore, and desist magistrate probable not or as to whether disinterested principle I exists he the the before makes arrest? submit applicable opinion majority is attempted the as to be used in given referred the the others illustration except emergency. The law the majority opinion, the quick and normally has to make instant officer enforcement 234 concerning probable cause,

decision he does nevertheless but cause, make a decision it not one made and is by magistrate. a disinterested point

Finally, “right” I hearing out that if this to have a constitutional, cause is then the under decisions Supreme Court, United States Miranda viz.: v. Arizona (1966), 436, 1602, 384 U. S. L. 86 S. Ct. Ed. 694 2d and (1964), 1758, Escobedo v. Illinois 378 U. S. S. Ct. suspect 2d L. Ed. should be informed of hear- ing, he told entitled to an attorney and, be is have it would follow, be entitled he to introduce evidence if desired, so and hearing. contest respect all due

With of the members Court who principles have majority opinion, enunciated must legal say principle aof sound that in exten- its test is application sions and it reaches rational sound results. opinion reported my principle that, here In does not do but reveals its unsoundness weakness in irrational majority opinion results which it reaches. be reversed will substantially be modified that is will reversed so eventually. this Court settling procedures involved,

Instead of majority opinion opin- even more creates confusion than Kinnaird assumption ion—all because the whole basic as to meaning provision of the constitutional is mis- supportable unsound, practical interpreted, is is in its not operations. illegal accomplishes purpose

To warrant no hold an arrest result evidence such unless obtained warrant is to suppressed In used case there and not at trial. evidence with reference to the arrest and involved question illegality of the issuance of the stating: question. a moot have the Court here We “we here validity” express opinion the the as to arrest made saying case, yet in time in at the substance no same issue, although by may an has been filed affidavit crime, relator commit the which shows person the the who saw and, fact, shows a crime has cause in more' than resulting thus have confusion from committed. been We by case, supra, compounded majority opin- the Kinnaird ion. public by there much to be

To me is said criticism procedures that have no real of cumbersome merit support the same. reasoning majority opinion, although

I dissent pro- reached that I concur in the result no writ issue should hibiting acting. from the trial court

Dissenting Opinion majority opinion from dissent Givan, J . upon recently

reason that it is based stated a law split of this case of Kinnaird v. State decision Court (1968), 251 Ind. 16 Ind. 242 N. 2d 500. Dec. E. charging The Kinnaird held case that affidavit crime upon is sufficient issue not which to an arrest agree. requirements warrant. With I do not I think of the Constitution of the United States and Constitution fully alleging Indiana met when a sworn statement person commission of a crime named is submitted may Court, to a consider the affidavit as probable cause for the issuance of a warrant of the accused. A charging affidavit case Kinnaird is set out opinion clearly shows that it is an affidavit on personal knowledge, authority whereas the cited in the opinion support proposition affidavit not suffi- upon effect “an cient information containing only affiant’s prob- conclusion belief able itself not of sufficient basis search war- (emphasis added). The quote rant” above is taken from Rohlf- ing (1949), 619, v. State Ind. E. 88 N. 2d 148. opinion majority in Kinnaird also the case cited

McCurry (1967), 191, v. State 249 Ind. 12 Ind. Dec. language quoted following N. E. 2d therefrom: hearsay doctrines “The with reference set out in Rholf- ing State, supra, v. still remain the in Indiana.” law quite apparent

It is from the thus examination of Kinnaird that the decisions cited therein are not authority for the hold- ing is that probable'Cause. insufficient show bar, case it is true

In the at while that affidavit recites upon face it made on its that belief, information and it person also shows its face the affiant is the from per- whom the car The record taken. before us he shows - sonally observed the relator take the automobile. It thus apparent-that person the affidavit this case in made knowledge personal with facts and, stated therein there- fore, case, as in thoroughly Kinnaird Trial Court was justified finding probable issue a war- rant arrest.

For above I overrule the would reasons Kinnaird deci- deny the sion and would writ this case.

However, majority as the of this inasmuch has seen principles fit set forth to establish Kinnaird case state, part the criminal of this law feel opinion necessary majority comments explain rulings made order to in the case be Kinnaird guide judges prosecuting as a case serve and to charged attorneys compliance this state with who ruling. the Kinnaird Reported in 247 N. E. 2d 519.

Note. —

Case Details

Case Name: State Ex Rel. French v. Hendricks Superior Court

Court Name: Indiana Supreme Court

Date Published: May 2, 1969

Citation: 247 N.E.2d 519

Docket Number: 369S44

Court Abbreviation: Ind.