Bowles v. State, 1269S295

• Decision Date: 25 February 1971
• Docket Number: No. 1269S295,1269S295
• Parties: Robert Gray BOWLES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 56

267 N.E.2d 56

256 Ind. 27

Robert Gray BOWLES, Appellant, v. STATE of Indiana, Appellee.

No. 1269S295.

Supreme Court of Indiana.

Feb. 25, 1971.

Raymond J. Ackerman, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Martin C. Basch, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal from a conviction for possession of narcotics. Appellant was tried without the intervention of a jury and sentenced to from two (2) to ten (10) years in the Indiana State Prison upon his conviction.

A motion for new trial was filed and overruled. Error in that regard is asserted here. In essence appellant asserts that certain evidence, because of the illegality of its seizure, was improperly used against him.

We turn now to the evidence. As repeatedly has been stated, on appeal of a criminal conviction we look to that evidence most favorable to the state and all reasonable inferences to be drawn therefrom. McGill v. State (1969), Ind., 247 N.E.2d 514.

Such evidence indicates that an Indianapolis police officer received an anonymous telephone call informing him that at an approximate time in an approximate location appellant could be apprehended with narcotics in his possession. So far as is known this is the first such call received from the particular unknown informant.

Acting on the information the police went to the appointed location at the appointed time and there observed appellant.

Appellant, in a normal manner we presume since the record is silent as to information to the contrary, left the scene in an automobile. The officers followed him for a relatively short distance and then, while appellant's car was stopped for a traffic light, pulled alongside with the emergency flasher lights on their vehicle in operation.

One of the officers got out of the police vehicle, approached appellant's car, and told him he was under arrest. He was also told to get out of his car.

Appellant obeyed the command he had been given and asked why he was being arrested. He was told to turn around and place his hands upon the top of his vehicle. As he did this the officers saw appellant 'flip' a plastic vial over the top of the car and into the street.

The police officers retrieved the vial after placing appellant in handcuffs and informing him of the charges against him. Chemical analysis later revealed the contents of the vial to be a derivative of heroin, possession of which constitutes a criminal offense. It was possession of the material in the vial that formed the basis of appellant's conviction.

Prior to the trial appellant filed a motion to suppress the vial and its contents as being the product of an illegal search. The trial court granted the motion to suppress the evidence found on the appellant upon a search of his person at the time of his arrest. In brief, having all the pertinent facts, including the demeanor of the witnesses, before him the trial judge ruled the search of appellant was illegal and that all evidence gained thereby must of right be suppressed.

We presume the trial court had the case of Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 in mind when it made its ruling. Under that case evidence seized in violation of federal constitutional safeguards may not be used in criminal prosecutions in state courts.

The factor that made the search illegal was, the trial court indicated, the lack of probable cause for the arrest of appellant. The warrantless arrest being invalid, the search incident thereto was also tainted. In reaching this legal conclusion the trial court mentioned its reliance upon the case of McCray v. Illinois (1967), 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 which spells out the circumstances under which a 'tip' from an informer will create probable cause for an arrest. As is obvious from its decision, the trial court felt the facts in the instance at hand did not render the 'tip' qualified to create probable cause for the arrest.

During the trial the state sought to introduce the vial and its contents into evidence. Over the objection of appellant's counsel the evidence was allowed to be admitted on the theory that appellant had abandoned it by his act of throwing it into the street--i.e., that it was not a product of the admittedly illegal search of his person. That decision of the trial court precipitates this appeal.

We begin our analysis with a finding that the arrest of appellant was indeed improper. McCray v. Illinois, supra; Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; United States v. Stallings (7th Cir. 1969), 413 F.2d 200; United States v. Franke (7th Cir. 1969), 409 F.2d 958; Weigel v. State (1969), Ind., 250 N.E.2d 368. To create probable cause sufficient to support the officers' arrest there had to exist such information that it could be said that

'* * * the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in * * *' Carroll v. United States (1924), 267 U.S. 132 at 162, 45 S.Ct. 280 at 288, 69 L.Ed. 543 at 555.

believing an offense was being committed by appellant. While probable cause may be supported and indeed created by information supplied by an informer, it must be demonstrated that the probability of accuracy of the 'tip' is sufficiently high. That is, the informer must be shown to be reliable. One manner of doing this is by referring to his past record of reliability. Another is by reference to extrinsic facts, including those which he may relate, to test his accuracy. McCray v. Illinois, supra; Draper v. United States, supra; United States v. Stallings, supra; United States v. Franke, supra; Weigel v. State, supra.

In the case at hand, so far as is known, the call in question was the first one ever received from the informer. Obviously past reliability was not an available check point in determining probable cause. As to the information related by the informer and the existence of extrinsic facts against which to check his information, we fare little better. From the record all that is shown is that the officer was told appellant would be in a certain area at a certain time and would be carrying narcotics. Such a 'tip' might well have been telephoned in regarding one of the police officers who made the arrest of appellant. An 'informer' knowing the officer's work habits could call in and indicate that the officer would be in front of a certain building at an approximate time. Certainly this might be true. But the mere fact that this might be the case, without more, hardly supports an intrusion into the officer's personal security. Naturally, one accosting the officer would not find narcotics upon him. The mere fact that appellant had such material in his possession, even in view of the heinous and despicable activity generated by drug abuse, does not justify intrusion into his affairs without probable cause. That gold may be found does not justify the prospector's trespass. Wong Son v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

Clearly, then the 'tip' received under the facts of this case did not, unsupported as it was by either a history of reliability of the source or extrinsic facts either from the informer or other...