*1 equally admissibility It is clear test for of testi- mony concerning pre-trial identification an accused used Denno, pre-Wade Stovall test. The Supreme explicitly Court held Wade rule would applied given not be because rule was not to be application. Therefore, retroactive test in Stovall cannot application interpret and limit Wade be used rule. Reported 250 N. E. 2d
Note. —
Weigel Indiana. rehearing August petition for 1068S166. Filed 1969. No [No. filed.] *2 appellant. Garrett, Gary, for Robert R. General, Has- Sendak, Attorney and Robert F.
Theodore L. General, appellee. Deputy Attorney sett, charged illegal pos- Appellant with the Hunter, J . drug. by jury Trial in a verdict resulted a narcotic session guilty than nor more two than sentence less a years. ten assignment
Appellant’s of error is the trial court’s sole grant motion new trial. his motion for refusal “Motion the it is erred pursuant Eeject” obtained Suppress certain appellant’s “illegal” to an person. favorable to the state most
A of the evidence brief recital George Morris, appellant, one A friend of follows: is as jail. appears County It prisoner Lake a in the been addicted incarceration, had prior Morris to his largely responsible for appellant and that narcotics great drugs. had been introducing This fact Morris pleased learn who to Morris’ mother concern made progress had been incarceration, some her since son’s drug treating habits. his arrest, mother Morris’ appellant’s day before him told phoned police officer Cuminus planned day lant jail to visit Morris the next at slip drugs. him that hé intended some Officer Cuminus message relayed superior, Sergeant Hilton, his who day. passed received call the similar same Word was through jail proper who were officials channels if at instructed to search when and he arrived jail as a visitor. 22, 1967, day phone ealls November On mother, made did Morris’ arrive County jail along Lake to visit with Morris’ mother Morris signed grandmother. he had As soon as the visitor’s office, guards slip, taken to an on the second he was The search resulted told to remove clothes. floor and plastic case, discovery cap, of a a needle in a bottle capsules syringe found to contain and four which were heroin. stated, previously substance
As to law the verdict was trial is that new *3 Sup- “Motion the trial court erred in procured Reject” as a result press the evidence illegal search. We find argument merit. lant’s without in this case is whether the issue
Appellant contends that time. at the probable to arrest cause police had fact, probable was, in there be shown If it can arrest, the sub- then it would follow make the cause being ‘reasonable’, incident sequent search of thereto: only unreasonable denounce mandates “Constitutional search preclude are inci such as do not and seizure Peak, Stearsman, Carter .” . . a lawful arrest dental 149, 162, 143 E. 2d N. (1957), Ind.
v. State legal cloaking case the instant the search Before must be probable to arrest however, cause sanctity adequately shown no short cut deter- mination. As this court stated in Manson (1967), 803: justifying “Probable cause an arrest without warrant where
exists facts and circumstances within the knowledge reasonably officer’s which he had trustworthy information, reasonably would lead a prudent person under conditions the time a crime had (our emphasis). been believe committed” emphasized It should be facts circumstances of each individual case determinative
for that case.
State
termining legality of an arrest. also have We appreciation rights sought an pro- for those to be prohibiting tected our constitutional mandates il- legal conflicting society seizure. The of interests judicial cognizance, those of versus the individual demand a both, yet impartial applica- of sensitive to the interests in its legal principles. bar, of such tion In the case at absent attempting smuggle fact contraband prison, admittedly only into the the bare essentials overriding However, cause were established. policy reserving prison ade- considerations authorities quate procedures admittedly pros- surveillance enhanced pect finding probable cause. argument
We have discussed the merits spite it to the of the fact that it was relates properly In Moore v. State reserved this Court. held 109, 223 N. E. 2d we motion to asserted speci urged under first cause evidence must be than (1956 Repl.) rather 9-1903 Stat. § fied in Ann. attempts reads do. The statute the ninth here pertinent part as follows: grant the defendant new trial “The court shall Irregularity any of them: First. or causes court, jury, order proceedings or or for the defendant which or abuse of discretion having a fair prevented from trial... finding jury or the the verdict Ninth. When law, suffi- sustained the court is cient evidence...” quite clear that a motion
From the statute seems one of nine causes. must be based on at least wrongful Many where the involve a situation the cases assign- independent as an suppression of evidence is *5 example ment of error. For see Moore State, v. supra; Snyder (1933), 204 666, Ind. 507; 185 N. E. (1925) elle v. State 149 N. E. Chaff 163. These assigned cases hold that such error must be under the first cause. authority addition to specifying that
wrongful suppression of evidence be as error under statute, of the first cause it seepi would that he is also precluded urging such error under the ninth cause ‘contrary by law’ court’s definition that term. As was said in Hamilton v. (1934), 97, 104, State 207 Ind. quoted approval 190 N. E. recently as in Streeval v. State 255, 259, specification contrary the verdict is to law: . . applied “. means and relates the law as to the facts by applying as shown the evidence. It means the law facts as shown evidence there is no basis guilty. virtually law for verdict It is a demurrer to the evidence.”
Thus, a contention that the verdict contrary is to law essentially given that, is a contention the evidence in the applicable case, and the particular rules law for that case, the is other than what it verdict would be those if applicable properly applied. of law had rules been proceeds point
The Hamilton case reasoning out sound necessity for a careful definition of each alleging proper error under the cause: purpose setting specifically why “The out the reasons granted, a new court trial should be is inform the trial complaints of the various relied a court for a new trial and to call same the attention of the review, opportunity and to afford an it to cor- complained error of.
rect We must assume that court as was considered below motion for governed presented by it the record and itself the rule of above mentioned. For us would do so every long abe violation of a settled rule of this state that indulged presumption reasonable should be favor jurisdiction, rulings, regularity proceedings State, supra, v. p. Hamilton trial court.” above, Mindful it asserted follows where is wrong cause, appellant’s argument under the the thrust of improper will be trial considered an framework and properly weigh appellant’s con- court will unable to its tention correct own errors. opinion
If would seem State, presentation of proper it relates *6 question appellee appeal, a in that the failed case object question the raised and manner in which the solely on There the case its merits. chose discuss might interpreted ap fore to the be extent 9-1903, proving assignment under cause § said #9 disapproved. extent such judgment foregoing reasons, should For the the all affirmed.
Judgment affirmed. concur; Jackson, J., in Givan, JJ.,
Arterburn, concurs part in part; result; J., dissented DeBruler, concurred C. in opinion. with Opinion Dissenting
Concurring and majority its deter- in with DeBruler, J . I concur C. here reasonable officers mination appellant entered to believe that cause and process in jail possession in of narcotics and thus and committing felony. final a officers received the The necessary corroborating factor, giving this cause them appellant moment arrived believe at when prisoner. jail sought visit and agree majority I further with the awas valid search incident ato lawful and the motion to properly the contraband in that seized search was overruled. agree However, police I do need of the to main- jails security prisons tain in the prohibit the need to contraband, the traffic should be considered as one of determining whether factors was reasonable committing cause to believe that felony,- a arrest him. support only policy needs the authorities can a searching seeking persons prisoners condition visit a However, right
to such a visit. the visitors have a to refuse forego privilege. such a search and thus their visitation This carrying not involve contraband while out does seized policy. such majority
I dissent wherein it holds that properly appeal merits of this before this court following for determination. The filed the for a new trial: now the defendant and moves the Court for “Comes captioned in the the reason that finding par- Court’s
ticular : denying (a) The the ‘Mo- Court erred Suppress Reject’ tion to admitting filed herein and thereafter against the defendant. *7 MEMORANDUM defendant was illegal thereby improperly and the evidence obtained admitted. apparent There no or overt law violation testimony no time of the arrest and was adduced which reliability provide a in manner to the would test infor- arresting officer
mation source which relied. the officers had reasonable Unless for illegal defendant, the arrest and the evi- not dence obtained incidental thereto was admissible. 472 State, 1955, Enlow 156, v. 234 Indiana 125 N. E. 2nd 250; State, 1925, 62; 98; Eiler v. 596, 196 Indiana N. 149 E. Morgan State, 1926, v. 197 Indiana 151 N. E.
Boyd State, 278; v. Indiana Edwards State, 170, 152 198 Indiana N. E. 721.” legitimate I no by see end to can be served the existence procedure requires of a appellant, rule which seeking ruling on a a review motion rights in violation of the obtained constitutional appellant, allege error for must this in his motion 9-1903 Burns’ Ann. § the first Ind. Stat. under section may it under ninth raise section of that statute. my opinion, Hamilton v. State justify E. 870 does rule enunciated N. majority. proposition for the That case the trial stands opportunity judge given an must be correct errors being precedent to considered this Court a condition their case, readily appeal. In can be seen amply judge in- trial, the trial new lant’s together being of the error formed argument. rais- I supporting believe that ap- allegation ing has under the law, meaning phrase contrary ordinary plied the specific statement my opinion, in absence and in nothing re- contrary, more should the statute procedural or statute. quired by a rule Reported E. N. NOTE. — of Indiana.
Ellis rehearing petition filed.] September 1969. No Filed 169S2. [No.