Brown v. State

• Decision Date: 26 March 1959
• Docket Number: No. 29692,29692
• Citation: 239 Ind. 358,157 N.E.2d 174
• Parties: Anna Lou BROWN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 174

157 N.E.2d 174

239 Ind. 358

Anna Lou BROWN, Appellant, v. STATE of Indiana, Appellee.

No. 29692.

Supreme Court of Indiana.

March 26, 1959.

Rehearing Denied April 29, 1959.

Ogle & Manor, Dennis & Cross, Muncie, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Owen S. Boling, Asst. Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal from a conviction of the appellant, Anna Lou Brown, resulting from a prosecution by affidavit charging her with receiving and concealing stolen goods. A trial by jury resulted in a verdict of guilty as charged and she was fined $250 and imprisoned in the women's prison for not less than one nor more than ten years. Her motion for a new trial was overruled and this appeal follows. On November 14, 1956, a Super Market operated by Delbert and Irene Harrold was burglarized and certain merchandise and a cash register were taken by one Noah Forehand. Forehand was charged with feloniously taking the cash register and the appellant with feloniously receiving, concealing and aiding in the concealment of the property. After appellant was arraigned and entered a plea of not guilty she filed a motion to quash a search warrant (under which the cash register was seized) and to suppress the evidence in connection therewith. The motion sets out the affidavit charging appellant with the offense of receiving stolen goods and the issuance of a search warrant for the cash register believed to be concealed either in a dwelling house situated at 824 South Penn Street (the home of appellant) or a frame building across the street (operated as a restaurant by appellant) situated at 1305 East Second Street in the city of Muncie, Delaware County, Indiana. Attached to the warrant was the affidavit of Noah Forehand in which he states that on November 14, 1956, he stole the aforesaid personal property from a Super Market situated at 523 Willard Street in said city and on that date he carried the cash register to the dwelling house situated at 824 South Penn Street and placed the same in the custody of the appellant, who resided in said dwelling house, and that continuously since that date the appellant has been in control and possession thereof.

The affidavit further states that Forehand informed appellant that the cash register had been previously stolen by him when he placed it in her care and custody at her request. The return on the writ was made a part of the motion to suppress and described, among other properties, one 'R. C. Allen cash register Model 666-CD 4, 868933-X.'

Appellant alleges that the officers (naming them) unless enjoined and restrained from so doing, will testify on behalf of the State in the trial of said cause, that which they saw and heard, and learned in said search; that on December 16, 1956, and for a long time prior thereto she and Joe Brown were husband and wife and as such occupied the dwelling house at 824 South Penn Street as their residence and further that such premises at 824 South Penn Street and the premises described in the search warrant as 1305 East Second Street were and are entirely separate and distinct places separated by a public street; and on said date and prior thereto the appellant operated a place of business on the premises described as 1305 East Second Street as the sole owner and occupant.

A separate hearing was held on the motion to suppress. The evidence shows that the officers first went to the residence at 824 South Penn Street and there read the search warrant in the presence of appellant and one Joe Brown, her husband, and a search was made of such premises but the cash register was not found. Thereupon the officers, together with appellant, went across the street to the restaurant at 1305 East Second Street which was owned and operated solely by appellant. Such premises are described as a single room used for the operation of a restaurant which at the time the officers entered was open to the public for business. When they entered the place they saw a cash register on the counter in plain view and made inquiry of appellant who was standing near the counter as to the ownership of the cash register and where she obtained it. Not receiving satisfactory answers to their questions, the officers examined it and found that it bore the name and serial number of the cash register for which they were looking. At that time the chief officer placed her under arrest and the cash register was taken to the police department as evidence for use in the trial.

Appellant first contends that the search and seizure was unlawful for the reason that the warrant and affidavit upon which it was based described two places, namely, the restaurant at 1305 East Second Street and the residence across the street at 824 South Penn Street. It was further urged that although the restaurant was owned and controlled entirely by the appellant, Mrs. Brown, the residence was occupied by Mrs. Brown and also her husband, Joe Brown, who was not named in the writ.

The Constitution of the State of Indiana with reference to unreasonable search and seizure provides in part:

'* * * and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.' Article I, Sec. 11, Constitution, State of Indiana. ¹

The appellant points to the singular use of the word 'place' rather than 'places', urging upon us that the Constitution permits the designation of only one place in a search warrant. We observe, however, that the word 'thing' to be seized is also in the singular, and it would be an unwarranted assumption that a separate search warrant must be issued for each separate item to be seized. We are not unmindful of the rights to be safeguarded by the constitutional provision, but we can see no reason for separate warrants to be issued where the search concerns one person and property which there is probable cause for believing might be concealed in a number of places. Appellants rely upon the cases of Hess v. State, 1926, 198 Ind. 1, 151 N.E. 405, and Thompson v. State, 1926, 198 Ind. 496, 154 N.E. 278. An examination of the first case shows that the search warrant was issued for premises described as 'at 214 and 214 1/2 Wabash avenue'. [198 Ind. 1, 151 N.E. 406.] The evidence showed that 214 was the ground floor and 214 1/2 was the second story, both of which floors were occupied by the accused and his wife, The court there held the search warrant was valid. In the second case the search warrant was issued for 'No. 29 Mary street'. [198 Ind. 496, 154 N.E. 279.] The building at the time was occupied by five different families and the separate portion occupied by the accused was not described. It is quite evident that the description was fatally defective as not being sufficiently exact. The warrant was held invalid.

In Thompson v. State, supra, the volunteer statement is made that a warrant which contains a description of more than one place to be searched is invalid, citing the Maine case of State v. Duane, 1905, 100 Me. 447, 62 A. 80. The statement was too broad and not applicable to the facts in the case in which made. Certainly, as that court held, a search warrant in which the description is so broad as to cover separate homes of third parties not accused, is too broad and general in character to be sustained.

When we examine the case of State v. Duane, supra, we find the same situation existing there as in Thompson v. State, supra, namely, that the description in the search warrant was too broad, since it described a hotel and inn which was occupied not only by the accused in part, but also other parts by third parties. The section and portion occupied by the accused was not definitely described. We need no citation of authorities to support the well recognized principle that a search warrant is invalid which leaves to the discretion of the officer the premises to be searched and fails to specifically and accurately describe the property of the accused.

The authorities on the validity of a search warrant covering more than one place occupied or possessed by the same person are collected and reviewed in 31 A.L.R.2d at page 864. It says:

'While the description in a search warrant to the premises to be searched cannot be so general as to leave the matter to the discretion of the officer, where the search of several suspected places is desired it is not necessary that a separate warrant issued [sic] for each place, but the same warrant may describe the several places to be searched.' 31 A.L.R.2d at page 865; Gray v. Davis, 1858, 27 Conn. 447; Williams v. State, 1952, 95 Okl.Cr. 131, 240 P.2d 1132, 31 A.L.R.2d 851; Hornig v. Bailey, 1882, 50 Conn. 40; Allen v. State, 1940, 178 Md. 269, 13 A.2d 352; People v. Woodward, 1925, 231 Mich. 559, 204 N.W. 731; Rose v. State, 1909, 171 Ind. 662, 87 N.E. 103.

Wharton's Criminal Law and Procedure, Vol. 4, sec 1554, p. 179, also supports the above statement.

It is our opinion from the authorities cited that a search warrant may authorize the search of more than one place if the same person and subject matter is involved in all places and probable cause is shown.

The appellant further contends that the home and dwelling was occupied by her husband as well as herself, and therefore the search warrant was invalid since she was not the sole occupant and possessor of the premises. No authority is cited on this proposition except upon the point that husband and wife are considered as one at law and therefore the title to occupancy is as if they were one. There are certain phases of law in which this fiction is recognized. However, a fiction is never raised in law except to avoid absurd or unjust consequences.

'All constructive or fictitious assumptions in law are forced by necessities to reach an equitable or just result and are never indulged in or raised when doing so perverts the ends of justice.'...