Powers v. State

• Decision Date: 21 October 1982
• Docket Number: No. 481S108,481S108
• Citation: 440 N.E.2d 1096
• Parties: Russell Ray POWERS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1096

440 N.E.2d 1096

Russell Ray POWERS, Appellant, v. STATE of Indiana, Appellee.

No. 481S108.

Supreme Court of Indiana.

Oct. 21, 1982.

J. Richard Kiefer, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant-defendant, Russell Ray Powers, was convicted of dealing in a narcotic drug, Ind.Code Sec. 35-48-4-1 (Burns Repl.1979), dealing in a schedule II controlled substance, Ind.Code Sec. 35-48-4-2 (Burns Repl.1979), and dealing in a schedule IV controlled substance, Ind.Code Sec. 35-48-4-3 (Burns Repl.1979), at the conclusion of a jury trial in Clark Circuit Court on April 29, 1980. Appellant was given thirty (30) years imprisonment for Count I, ten (10) years imprisonment for Count II, and five (5) years imprisonment for Count III, all sentences to be served consecutively. Powers now appeals.

Appellant raises seven errors on appeal, concerning: 1) whether the search warrant was based upon illegally intercepted telephone conversations; 2) whether the trial court erred in allowing the State to retain the confidentiality of its informant; 3) whether the trial court erred in overruling Appellant's Belated Motion to Correct Errors based on newly discovered evidence; 4) whether the search warrant was facially inadequate; 5) whether the trial court erred in admitting exhibits over Appellant's chain of custody objection; 6) whether the trial court erred in allowing a police officer to testify as to Appellant's intent to deliver drugs; and 7) whether the sentence imposed was excessive.

On March 14, 1979, a search warrant was issued authorizing the police to search for narcotics in the residence located at 801 E. Chestnut Street in Jeffersonville, Indiana. Officers Donald Croft and Ray Leezer were on surveillance at 801 E. Chestnut on March 15, 1979, when Appellant arrived at the house. Appellant was accompanied by two individuals, a man and a woman. After the three got out of the car, Appellant removed two dark colored satchels and entered the house. A few minutes later, Appellant left the house, made some purchases at a liquor store and a grocery store, and then returned to his home at 801 E. Chestnut. At that point the police informed him of the search warrant and Appellant agreed to let the police search his residence. As they approached the front door, one of the officers observed a young man grab a briefcase or bag and run through the house. The police forced the door open and caught the young man, Terry Powers, and seated him, along with Appellant, a woman named Rhonda Spears, and a young child, on a bed while the house was searched. The search turned up cocaine, diazepam, barbiturates, phentermine, and some marijuana. In addition, mannitol, which is used to cut cocaine, was also found, along with various sifters and other tools.

I

Appellant argues that the search warrant was based on information illegally obtained through the interception of his telephone calls. He now argues that this fact makes the search and seizure of items at his home illegal and therefore the trial court should have suppressed the introduction of all evidence seized at Appellant's residence. Appellant's error 3 is related to error 1 and both errors will be handled in this issue.

Officer Donald Croft was the affiant for the search warrant and the following reasons constituted his belief that there was probable cause to search Appellant's house:

"I am a police officer with the Jeffersonville Police Department. Approximately three months ago a person contacted me for the purposes of giving me information concerning the possession and sale of cocaine. This person or informant related to me that the person of RUSSELL POWERS who lives in the above described dwelling was a regular dealer in cocaine. This informant further related to me that RUSSELL POWERS was observed by the informant cutting cocaine in the above described dwelling on a number of occasions and further advised me that RUSSELL POWERS was observed by the informant selling cocaine to persons who visited at the above described dwelling. This informant additionally related that RUSSELL POWERS would cut this cocaine and bag it in plastic bags using a seal-a-meal machine which seals material in plastic bags. I advised this person, my informant, to keep me notified as to the activity of RUSSELL POWERS. Over the last three months on at least eight occasions this informant gave me information concerning the activity of RUSSELL POWERS. This information consisted of this informant telling me that RUSSELL POWERS intended to go to a certain place and meet with a certain person for the purposes of transacting a deal in cocaine. On these occasions I and other police officers provided surveillance of RUSSELL POWERS and he did go to the places indicated by this particular informant and on several of these occasions I did observe him meeting with the person described by the informant. I was not able on these occasions to make any interceptions or determine that drug trafficking was occurring.

This informant advised me on a number of occasions that RUSSELL POWERS would go to Bowling Green, Kentucky, for the purpose of purchasing cocaine. This informant additionally advised me that on the occasions that RUSSELL POWERS was observed cutting the cocaine that he referred to it as cocaine.

Last evening, March 13, 1979, I was observing the above described dwelling and noted that there were six automobiles parked outside the dwelling and that these automobiles had Kentucky plates. I also observed a number of people inside the dwelling. Early this morning, March 14, 1979, I contacted my informant and inquired as to the people being at 801 E. Chestnut Street and as to the automobiles parked outside. This informant advised me that RUSSELL POWERS was present in the dwelling with a number of people who were pooling their money for the purpose of having RUSSELL POWERS purchase a large amount of cocaine. This informant related that there were conversations concerning the purchase of cocaine and this information related that money was given to RUSSELL POWERS for the purpose of his purchasing cocaine.

Following this conversation with my informant I received a telephone call from the informant later on and the informant related that RUSSELL POWERS made a statement that he was going to Bowling Green to make the connection and that he had left for the apparent purposes of traveling to Bowling Green.

This informant further related that last night cocaine was observed by the informant in the above described dwelling and that none of the persons left the dwelling last night with this cocaine. Furthermore, this informant stated that based upon past observations cocaine was always to be found in the above dwelling.

I discussed this matter further with this informant who related that following his trips to Bowling Green that RUSSELL POWERS would return to the above described dwelling taking the cocaine inside for the purposes of cutting it before delivering it or selling it to his various customers.

I asked this informant how the informant was certain that the materials RUSSELL POWERS dealt in was cocaine. This informant related that in addition to the numerous conversations in which the word cocaine was used and in addition to seeing the white powdery substance in plastic bags that RUSSELL POWERS snorted the white powder in the informant's presence and that the white powder had some obvious effect upon him.

I believe this informant to be a credible person who spoke with personal knowledge as to the informant's observations in that on at least eight occasions, as mentioned above, the information given to me by this informant proved to be accurate and correct.

Based upon the foregoing, I believe there is probable cause to search said dwelling for cocaine." (emphasis added)

A hearing on the suppression motion was held on August 27, 1979. Croft was questioned mainly by the defense counsel, although a few questions were asked by the State. Under questioning, Croft testified that all of the facts in the affidavit were true to his knowledge. He stated that he did not know of any illegal interception of phone calls and that he never directed the informant to make any illegal interceptions. Defense counsel asked Croft who the informant was but the State successfully objected, arguing that the confidentiality of the informant must be maintained. A few notes that Croft wrote down were introduced at which time he was asked to explain the term "calls often." Croft replied that the information he wrote down on that note pad came from another informant but he assumed that "calls often" meant telephone calls. At the end of the hearing defense counsel made an offer to prove that Connie Hartman was the informant. The trial court reserved judgment on the motion until both sides had an opportunity to submit briefs in support of their positions. The Motion to Suppress was denied on December 7, 1980.

Appellant cites us to 18 U.S.C. Sec. 2515 (1970) which provides as follows:

"Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter."

Appellant argues that Connie Hartman listened in on his private telephone calls while she worked for a telephone answering service to which Appellant subscribed. This information was passed on to Officer Croft and was used by him to determine the probable cause for searching Appellant's house. Therefore, Appellant states that Sec. 2515 compels any court to refuse...