Armstrong v. State

Decision Date07 January 1982
Docket NumberNo. 181S6,181S6
Citation429 N.E.2d 647
PartiesJames E. ARMSTRONG, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Jack Quirk, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged in a four-count indictment with the crimes of Attempted Murder, as defined in I.C. 35-41-5-1 (Burns' 1979) and I.C. 35-42-1-1 (Burns' 1979). A jury trial resulted in a verdict of guilty on this charge. He was also charged with Unlawful Possession of an Explosive, and two counts of Arson. The jury acquitted him on those charges. Appellant was sentenced to a twenty (20) year term of imprisonment.

The relevant facts are as follows. On April 12, 1978, there was an explosion outside the home of one Bobby Hatfield, a resident of Muncie, Indiana. Muncie police investigated and found pieces of fuse, fragments of both a pipe end cap and threaded pipe, and black powder residue, indicating a homemade bomb was the cause of the explosion. Ten days later, the Thomas Cooper family of Muncie was awakened by the sound of an explosion at their home. Mr. Cooper went downstairs to find his picture window blown in. Investigating police found fragments of clay, tape, and a pipe cap inside the home. The next night at approximately 3:30 A.M. the Coopers were awakened by gunshots. Mr. Cooper found shots were being fired into his living room even as he descended the stairs. Police found several spent projectiles at the scene and identified them as .22 caliber bullets. All of these evidentiary items were eventually turned over to Special Agent James Richardson of the Federal Bureau of Alcohol, Tobacco, and Firearms, who was called in to assist in the investigation.

On June 13, 1978, appellant upon request came to the Muncie police station to answer some questions. He was informed he was not under arrest and did not have to go to the station. Prior to questioning he was read a Miranda warning. He was asked if he had any firearms in his possession. He responded that he did. He was not asked about any specific weapon. Police knew he once possessed a large quantity of firearms because they had taken them into protective custody following a fire at his home in 1973. At that time, identifying information about the weapons was recorded, then they were returned to him. Later in the day on which he was questioned police checked the serial numbers of the guns they knew appellant possessed in 1973 and found one of them, a .22 caliber pistol, was registered to a Thomas Huser of Muncie. Special Agent Richardson checked with Mrs. Huser, now a widow. She told him the gun was reported missing from the Huser home after 1973, although it had been missing since before then. Subsequently a search warrant for that particular weapon was issued and executed early in the morning of June 14, 1978. During a search under authority of that warrant, police did not find the weapon they sought. However, they did find another .22 caliber pistol. A visual check of that pistol led them to believe it could have been the gun from which the shots were fired into the Cooper living room. Subsequent ballistics tests confirmed that it was, in fact, the weapon used in that attack. The police also saw at various places throughout the house: black powder, wrapping tape, clay, fuse material, and a pipe cap. Police immediately obtained and executed another search warrant for these items. Subsequently appellant was charged with the crimes as recited above and convicted and sentenced on the attempted murder count.

Appellant claims the trial court erred in denying his Motion to Suppress all the evidence gathered in the two searches described above. At the outset, we note any error assigned to failure to suppress evidence gathered in the second search is waived by lack of a discernible argument in appellant's brief on that point. Ind.R.App.P. 8.3(A)(7). As to the first search, appellant argues it was unlawful, thus, all of its fruits were inadmissible at trial because the warrant was defective. Appellant claims the warrant's defects to be: (1) it was based on multiple hearsay, (2) the facts therein alleged were too remote in time in relation to the issuance of the warrant, and (3) it was partially based on an inadmissible statement appellant made to police during his unlawful detention at the Muncie police station on June 13, 1978.

Subject to some exceptions, not applicable here, a lawful search may be conducted only after issuance of a warrant supported by an affidavit establishing probable cause. Indiana Constitution Article I, § 11. A statute, I.C. 35-1-6-2 (Burns' 1979) sets out further requirements. That statute in pertinent part reads:

"(T)he affiant (must set forth) the facts then in knowledge of the affiant or information based on credible hearsay .... When based on hearsay, the affidavit shall contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished."

In interpreting this statute, this Court has held, "Hearsay facts are competent to support a finding of probable cause where the facts furnished to the affiant are credible, and the affiant has reasonable grounds for attaching reliability to the informant giving him the facts." Ruetz v. State, (1978) 268 Ind. 42, 48, 373 N.E.2d 152, 155, cert. denied, 439 U.S. 897, 99 S.Ct. 261, 58 L.Ed.2d 245.

Appellant relies on Ferry v. State, (1970) 255 Ind. 27, 262 N.E.2d 523, for the proposition that in spite of the language of I.C. 35-1-6-2, the affiant may not use multiple or totem pole hearsay as the entire basis for his information. We do not believe there is a multiple hearsay problem here. The affiant, Special Agent Richardson, talked to Mrs. Huser who told him the gun was stolen or missing from the Huser household since prior to 1973. Appellant apparently wants this Court to construe Richardson's affirmations before the magistrate as a hearsay report from Mrs. Huser that she through hearsay learned from her husband that he had reported the gun stolen. We believe such a construction of the facts in the case at bar is erroneous. The fact furnished to Richardson was that the gun was missing from the Huser household and that a report it was stolen was made, not that someone had told Mrs. Huser these facts. An officer accompanying Richardson to the magistrate to procure the warrant, testified later at the hearing on the Motion to Suppress that, "she said that she found it missing sometime later and reported it." The affidavit states, "she informed me that said revolver was reported stolen prior to 1973." Given this state of facts, we do not see a multiple hearsay problem here. Additionally, we hold the requirements of I.C. 35-1-6-2 have been met. The facts furnished to the magistrate were credible. Richardson further stated he checked the stolen gun report files and found the report Mrs. Huser had told him about. Richardson thus had "reasonable grounds for attaching reliability to the informant giving him the facts." Ruetz, supra.

In presenting his argument as to the remoteness of the facts furnishing probable cause, appellant relies on Ashley v. State, (1968) 251 Ind. 359, 241 N.E.2d 264. In that case this Court held where the facts establishing probable cause existed eight (8) days before the warrant was issued, the warrant was invalid. Appellant urges the facts establishing probable cause in this case are more than five (5) years old, well in excess of the Ashley limit. However, in Ashley we indicated our inquiry was toward "how much time (intervened) between the obtaining of the facts and the issuance of the search warrant." (Emphasis added.) Id. at 368, 241 N.E.2d at 269. Here some of the facts that the Husers had been missing a gun since 1973 and that appellant possessed that same gun in 1973 were in existence five (5) years before the warrant was issued. However, affiant Richardson clearly acquired knowledge of those facts on June 13, 1978, only hours before the warrant was issued. Given the language of Ashley, supra, we think it is clear the magistrate properly issued the warrant, as the affiant attested to credible hearsay acquired by him within hours of the issuance of the warrant. The federal rule generally is the remoteness or alleged "staleness" of the information contained in the affidavit for a search warrant must be judged by the facts and circumstances of each case. See, e.g., Sgro v. United States, (1932) 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260; United States v. Diecidue, (5th Cir. 1979) 603 F.2d 535, cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781. When the affiant acquired the information as well as the age of the information itself, is a circumstance which was properly weighed in this cause.

Appellant also contends the search warrant was invalid because it was partially based on a statement he made while undergoing questioning at the Muncie police station on June 13. Appellant's argument is, the statement was made during an unlawful detention and could therefore not be used to support probable cause for issuance of the warrant. Appellant claims the detention was unlawful because it amounted to a warrantless arrest.

Arrest is defined in I.C. 35-1-17-1 (Burns' 1979) as "the taking of a person into custody, that he may be held to answer for an offense." In Peterson v. State, (1968) 250 Ind. 269, 272, 234 N.E.2d 488, 490, we noted the rule for determining when an arrest has occurred is, "(W)hen police officers interrupt the freedom of an accused and restrict his liberty of movement, an arrest has been effected." Given the statutory language of I.C. 35-1-17-1 and the rule in Peterson, we hold no arrest was made of the appellant during his visit to the police station on June 13. The record shows appellant went willingly to the police station, was...

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