Butler v. State
| Decision Date | 05 December 1972 |
| Docket Number | No. 2--672A16,2--672A16 |
| Citation | 34 Ind.Dec. 72,154 Ind.App. 361,289 N.E.2d 772 |
| Parties | Add BUTLER, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.
CASE SUMMARY--Defendant-appellant, Add Butler, Jr. (Butler), appeals from a court trial conviction of possession of heroin pursuant to Ind.Ann.Stat. § 10--3520 (Burns Supp.1972), IC1971, 35--24--1--2. We affirm.
FACTS--The facts and evidence most favorable to the State and the judgment below are:
At approximately 10:00 P.M. on July 21, 1971, Butler and three other men were standing near an unoccupied open convertible parked in the service area of a gasoline service station located on the corner of North and West Streets in Indianapolis. The open convertible was owned by one of the three men conversing with Butler.
While on a routine patrol, Officers James Brenton (Officer Brenton) and Carl Robertson (Officer Robertson) of the Indianapolis Police Department observed Butler and the three men standing outside of the service station and approached the three men. Upon seeing the officers, Butler moved toward the open convertible and dropped a cellophane package into the back seat. Butler then walked inside the service station while two of the other three men got into the car.
Officer Robertson, without a search warrant, and before making any arrests or searching any of the four men, approached the car, opened the door and retrieved the cellophane package from the rear floorboard of the car. Officer Brenton testified that the package retrieved by Officer Robertson was the same package discarded by Butler. Officer Robertson then gave the package to Officer Brenton, who examined it and found it to contain three tinfoil packets, each filled with a white powdery substance. After Officer Brenton conducted a Marquis Reagent Test (a preliminary field examination to determine the presence of an opiate derivative drug), Butler and the other two men were searched and arrested.
The three tinfoil packets and their contents were returned to the cellophane package, which was in turn placed by Officer Brenton in a yellow envelope. Officer Brenton then marked the outside of the envelope for identification and proceeded to Police Headquarters, where at 11:25 P.M. of the same night, the yellow envelope was deposited in the Narcotics Vault in the Property Room located in the basement of Indianapolis Police Headquarters.
On October 22, 1971, the yellow envelope was taken from the Narcotics Vault in the Property Room and delivered to the Police Laboratory, where Carl Phillips (Phillips), a forensic chemist for the Indianapolis Police Department, examined the contents. After conducting routine tests, the results of which disclosed that the substance was heroin, Phillips sealed the tinfoil packets and cellophane package in a plastic bag, placed it in the yellow envelope which he marked and sent back to the Narcotics Vault in the Property Room.
At the trial on February 10, 1972, the yellow envelope and its contents were produced and became State's Exhibit Number 1 (hereinafter referred to as the 'cellophane package') after being identified by Officer Brenton and Phillips as the same package they had occasion to deal with in connection with Butler's arrest.
Butler was found guilty by the court and sentenced to the Department of Correction for not less than two nor more than ten years.
ISSUE ONE. Did Officer Robertson's warrantless search of the open convertible constitute an illegal search and seizure, thereby requiring the suppression of the cellophane package obtained from that search and seizure?
ISSUE TWO. Was a sufficient chain of custody over the cellophane package established to warrant admission of the cellophane package into evidence?
ISSUE THREE. Was the evidence presented sufficient to establish Butler's guilt beyond a reasonable doubt?
As to ISSUE ONE, Butler says the search of the open convertible was illegal because there was no probable cause to believe a felony had been committed.
In response, the State points to Butler's suspicious actions as sufficient to establish probable cause, thus making the search valid.
As to ISSUE TWO, Butler asserts that there was a break in the chain of custody of the cellophane package because Officer Brenton placed the cellophane package in the 'Narcotic Lockbox' on July 21, 1971, and some three months later, Phillips removed it from the 'Property Room.'
The State's response is that there was no evidence of any tampering with or alteration of the cellophane package from the time it was taken to the Narcotics Vault of the Property Room on July 21, 1971, until it was presented for admission into evidence at trial on February 10, 1972.
As to ISSUE THREE, Butler contends that the evidence presented by the State was insufficient to sustain his conviction because there was a reasonable doubt as to whether the cellophane package retrieved by Officer Robertson was the same cellophane package Butler purportedly threw into the back seat of the automobile. Furthermore, Butler asserts that there was no evidence introduced proving that he was not one of the class of persons authorized by law to possess drugs.
The evidence conclusively proved, the State says, that the cellophane package discarded by Butler was the same package retrieved by Officer Robertson and furthermore there is no requirement of proof that Butler was not one of the class of persons authorized to possess or control narcotic drugs.
ISSUE ONE--It is our opinion that the search of the automobile by Officer Robertson did not constitute an illegal search and seizure.
We are aware of the general rule requiring exigent circumstances and the existence of probable cause to justify a warrantless search and seizure. Coolidge v. New Hampshire, (1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Stuck v. State, (Ind.1970) 264 N.E.2d 611; Manson v. State, (1967) 249 Ind. 53, 229 N.E.2d 801.
Because of the automobile's mobility a search may be thwarted if delayed. Relaxation of the requirement of a warrant is permissible in certain circumstances. United States v. Zemke, (7th Cir. 1972) 457 F.2d 110; Idol v. State, (1954) 233 Ind. 307, 119 N.E.2d 428.
But more important to this appeal is who may wrap himself in the mantle of constitutional security against unreasonable searches and seizures. The right is personal. Violation of a third party's constitutional rights cannot be claimed by an accused as grounds for suppression of evidence sought to be introduced against him. Kirkland v. State, (1968) 249 Ind. 305, 232 N.E.2d 365; Greer v. State, (1970) 253 Ind. 609, 255 N.E.2d 919; United States v. Eversole, (7th Cir. 1954) 209 F.2d 766.
Objection to an illegal search and seizure of a third party's property which the defendant does not own, or have the right to possess, is of no avail. Kirkland v. State, supra; Lindsey v. State, (1965) 246 Ind. 431, 204 N.E.2d 357; Minton v. State (1966) 247 Ind. 307, 214 N.E.2d 380; Britt v. State, (1962) 242 Ind. 548, 180 N.E.2d 235; Adler v. State, (1967) 248 Ind. 193, 225 N.E.2d 171; Wilson v. State, (1966) 247 Ind. 454, 217 N.E.2d 147.
In Kirkland v. State, supra, the defendant was arrested for robbery while riding with a co-defendant in the co-defendant's automobile. After the arrest, the police searched the co-defendant's automobile and discovered the money obtained from the robbery. In affirming a denial of the defendant's motion to suppress the evidence obtained from the search of the co-defendant's automobile, Chief Justice Arterburn emphasized the personal nature of the right against unreasonable searches and seizures:
'* * * Under the circumstances, the appellant has no legal right to complain of the search of an automobile which was not in his possession at the time.
(Emphasis supplied.)
The conclusive evidence is that the open convertible searched by Officer Robertson was not owned by Butler, nor does the record indicate that he was in control of or had a right to possess the automobile. The only evidence to connect Butler with the open convertible is that he was standing near it in the service station area with two other men, one of whom was the owner. This is hardly sufficient to warrant the inference that Butler was in possession of or had the right of possession of the convertible.
From the authority cited above the conclusion is inevitable that even though Butler may have ridden in another man's automobile, he may not vicariously draw on the owner's constitutional privilege against unreasonable search and seizure.
Therefore, the cellophane package and its contents were properly admitted into evidence.
ISSUE TWO--It is our opinion that a chain of custody over the cellophane package was established so as to warrant admission of the package into evidence.
In recent years the chain of custody rule has been the subject of judicial interest. Its purpose is to establish a complete chain of possession from the original receiver to the final...
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