Apple v. State, No. 1--573--A--100

Docket NºNo. 1--573--A--100
Citation304 N.E.2d 321, 158 Ind.App. 663
Case DateDecember 13, 1973
CourtCourt of Appeals of Indiana

Page 321

304 N.E.2d 321
158 Ind.App. 663
Bobbie Ann APPLE, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 1--573--A--100.
Court of Appeals of Indiana, First District.
Dec. 13, 1973.

[158 Ind.App. 664]

Page 322

Chester R. Hobbs, Salem, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendant-appellant Bobbie Ann Apple (Apple) appeals from a conviction of second degree burglary following a trial by jury.

The following issues are presented for review:

1. Whether the trial court erred in overruling Apple's motion to suppress certain evidence.

2. Whether the trial court erred in its determination as to the voluntariness and admissibility of Apple's confession.

3. Whether the evidence is sufficient to support the conviction.

[158 Ind.App. 665] The evidence most favorable to the State reveals that on the evening of October 19, 1970, Apple and Junior Music drove to an unoccupied residence owned by Orville Parks. They pulled off the road and became stuck in the mud. At daybreak, they walked to a neighboring house and were given a ride to Paoli. Apple then returned to the Parks' residence with one Marion Hobson and attempted to extricate the automobile. During this attempt, Hobson's automobile also became stuck. Then, according to Hobson's testimony, they 'robbed the place.' Entering through a window and exiting through the front door, Apple removed several items from the house. The two then solicited help from another neighbor to remove their automobiles.

Apple and Hobson were subsequently arrested and charged with second degree burglary, to which Hobson pleaded guilty.

Apple first contends that the trial court erred in overruling her motion to suppress certain evidence. During the execution of a valid search warrant on the Apple premises, State Policeman Tom Lewis observed a gun rack, blanket, and candle holder in the back seat of an unused automobile. These articles, which were listed in the affidavit for search warrant, were in plain view and could be observed from outside the vehicle.

Apple argues that these articles are the fruits of an illegal search and seizure since the vehicle was not named in the search warrant. We do not agree.

Apple rests her argument on Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. However, that case is clearly distinguishable from the instant case. Pursuant to a warrant for the search and seizure of Coolidge's automobile, it was removed from his premises, impounded and thoroughly searched. Prior to his trial for first degree murder, Coolidge moved to suppress evidence obtained from the search of the vehicle. His motion was overruled. On certiorari, the Supreme Court held that the warrant authorizing the seizure [158 Ind.App. 666] and subsequent search of the vehicle had not been issued by a 'neutral and detached magistrate' and was therefore invalid. As an alternate theory, the State argued that the warrantless seizure and search was justified since the car itself was an 'instrumentality of the crime' and could therefore be seized since

Page 323

it was in plain view on Coolidge's property. The court rejected this theory.

In the case at bar, the officers were legally on and about Apple's premises pursuant to a valid search warrant. They did not undertake a search of the unused vehicle. The items were discovered in plain view as one of the officers glanced into the rear seat of the vehicle. To hold that the items could not be seized under these circumstances would seem illogical. We find nothing in Coolidge, supra, dictating such a conclusion.

In our opinion, the following from Harris v. United States (1968), 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067, is applicable to the case at bar:

'It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.'

See also, Presley v. State (1972), Ind.App., 284 N.E.2d 526.

In answering Apple's contention that the officers should have obtained a search warrant for the vehicle after the items were observed, we consider the following passage from Coolidge v. New Hampshire, supra, to be appropriate:

'Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous--to the evidence or to the police themselves--to require them to ignore it until they have obtained a warrant particularly describing it.'

We therefore hold that the trial court did not err in overruling Apple's motion to suppress the gun rack, blanket, and candle holder.

[158 Ind.App. 667] As her second issue, Apple challenges the trial court's determination that her confession was voluntary and admissible. The record reveals that about twenty-six hours following her arrest, Apple communicated a desire to make a statement to the police and did so after being fully informed of her rights. She now argues that her statement was rendered inadmissible under IC 1971, 35--5--5--3; Ind.Ann.Stat. § 9--1636 (Burns 1973 Supp.), which reads:

'In any criminal prosecution by the state of Indiana, a confession made of given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law enforcement officer or law enforcement agency, shall not be inadmissible solely because of the delay in bringing such person before a judge if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention:

'Provided, That the time limitation contained in this section shall not apply in any case in which the delay in bringing such person before a judge beyond such six-hour period is found by the trial judge to be reasonable, considering the means of transportation and the distance to be traveled to the nearest available judge.' (Acts 1969, ch. 312, § 3, p. 1293.)

Apple interprets this statute to absolutely bar admission of a confession obtained beyond the six hour period unless it is determined by the trial judge that the failure to bring the defendant before a judge within six hours is reasonable, considering distance and manner of transportation. The State, on the other hand, contends that the statute does not flatly prohibit admission of a confession given after the initial six hours following arrest. Rather, it is argued that the delay is but one factor to be considered in determining voluntariness and admissibility.

Although we find no Indiana cases construing this statute, we note that it has

Page 324

a counterpart in Federal law. This section [158 Ind.App. 668] and four others, all pertaining to the subject of voluntariness and admissibility of confessions, were adopted by our Legislature...

To continue reading

Request your trial
13 practice notes
  • Clayton v. State, No. 2--476A165
    • United States
    • 22 Septiembre 1976
    ...(1972) 258 Ind. 667, 284 N.E.2d 81; Carter v. State (2d Dist. 1976), Ind.App., 345 N.E.2d 847; Apple v. State (1st Dist. 1973), Ind.App., 304 N.E.2d 321. [170 Ind.App. 690] The only issue presented to us on appeal is whether the evidence is sufficient to establish the elements of breaking a......
  • Allen v. State, No. 181
    • United States
    • Indiana Supreme Court of Indiana
    • 23 Febrero 1982
    ...and that it would be a perversion of the statute to allow a trial court to remain silent about these factors. In Apple v. State, (1973) 158 Ind.App. 663, 671, 304 N.E.2d 321, 325-26, the Court referring to the predecessor of Ind.Code § 35-5-5-2, which contains the same language, stated the ......
  • Murphy v. State, No. 1275S368
    • United States
    • Indiana Supreme Court of Indiana
    • 8 Noviembre 1977
    ...inadmissible as a matter of law, but is rather one factor to be considered in the question of admissibility. See Apple v. State, (1973) 158 Ind.App. 663, 304 N.E.2d 321, and cases cited Partly on the basis of the above statute, this court suppressed a confession which it found to be the res......
  • Cox v. State, No. 783S257
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Marzo 1985
    ...Appellant's failure to tender this particular instruction has been held to result in a waiver of the issue. Apple v. State (1973), 158 Ind.App. 663, 304 N.E.2d Page 670 Appellant argues we should analyze the problem from the perspective of fundamental error. Grey v. State (1980), 273 Ind. 4......
  • Request a trial to view additional results
13 cases
  • Clayton v. State, No. 2--476A165
    • United States
    • 22 Septiembre 1976
    ...(1972) 258 Ind. 667, 284 N.E.2d 81; Carter v. State (2d Dist. 1976), Ind.App., 345 N.E.2d 847; Apple v. State (1st Dist. 1973), Ind.App., 304 N.E.2d 321. [170 Ind.App. 690] The only issue presented to us on appeal is whether the evidence is sufficient to establish the elements of breaking a......
  • Allen v. State, No. 181
    • United States
    • Indiana Supreme Court of Indiana
    • 23 Febrero 1982
    ...and that it would be a perversion of the statute to allow a trial court to remain silent about these factors. In Apple v. State, (1973) 158 Ind.App. 663, 671, 304 N.E.2d 321, 325-26, the Court referring to the predecessor of Ind.Code § 35-5-5-2, which contains the same language, stated the ......
  • Murphy v. State, No. 1275S368
    • United States
    • Indiana Supreme Court of Indiana
    • 8 Noviembre 1977
    ...inadmissible as a matter of law, but is rather one factor to be considered in the question of admissibility. See Apple v. State, (1973) 158 Ind.App. 663, 304 N.E.2d 321, and cases cited Partly on the basis of the above statute, this court suppressed a confession which it found to be the res......
  • Cox v. State, No. 783S257
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Marzo 1985
    ...Appellant's failure to tender this particular instruction has been held to result in a waiver of the issue. Apple v. State (1973), 158 Ind.App. 663, 304 N.E.2d Page 670 Appellant argues we should analyze the problem from the perspective of fundamental error. Grey v. State (1980), 273 Ind. 4......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT