Capps v. State, 30869

Citation248 Ind. 472,229 N.E.2d 794
Decision Date02 October 1967
Docket NumberNo. 30869,30869
PartiesRobert Lee CAPPS, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

John G. Bunner, Evansville, for appellant.

John J. Dillon, Atty. Gen., John F. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Chief Justice.

This is an appeal growing out of the conviction of Robert Lee Capps in the Vanderburgh Circuit Court for robbery. The charge was brought by way of affidavit and the issues were drawn upon appellant's plea of not guilty. The cause was submitted for trial by jury, the Honorable William H. Miller, presiding.

The only assignment of error argued by the appellant in his brief is that the trial court erred in allowing the prosecution to introduce certain demonstrative evidence which was found in appellant's automobile following his arrest. Appellant contends that his arrest, which was accomplished without a warrant, was not based upon probable cause, and that any evidence seized in a search incidental to such arrest was inadmissible at his trial.

It is settled law that the search of an automobile is legal if made incidental to a lawful arrest. Arthur v. State (1949), 227 Ind. 493, 86 N.E.2d 698; Smith v. State (1939), 215 Ind. 629, 21 N.E.2d 709. It is likewise well established that where an arrest is made without probable cause, such unlawful arrest cannot be the foundation of a lawful search, and the fruits of a search incident to an unlawful arrest are not admissible at trial. Enlow v. State (1955), 234 Ind. 156, 86 N.E.2d 250 and cases cited therein; Henry v. United States (1959), 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; Johnson v. United States (1948), 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436.

The presumptions being in favor of the trial court, this Court will only consider the evidence most favorable to the State and all reasonable and logical inferences that may be adduced therefrom. Beatty v. State (1963), 244 Ind. 598, 194 N.E.2d 727; Epps v. State (1963), 244 Ind. 515, 192 N.E.2d 459; Tait v. State (1963), 244 Ind. 35, 188 N.E.2d 537; Myles v. State (1955), 234 Ind. 129, 124 N.E.2d 205. The evidence, viewed in that light, discloses the following facts:

The arresting officer, Lieutenant Danks, received a telephone call at police headquarters at approximately two o'clock on the morning in question from a person at a gasoline station which, the caller said, had been robbed. The caller, Rueben Webster, did not give his name but told Lt. Danks that the robber had worn a red and white checked shirt and light levis, had long, dark hair and had a space between his front teeth. Lt. Danks then left police headquarters, intending to go to the scene of the robbery. While enroute, he spotted an auto driven by a person wearing a red and white checked shirt. Danks altered his route and, along with another police unit which he called, stopped that automobile. After satisfying himself that the driver of this vehicle did not fully match the description of the robber, Danks was just pulling away when he received a radio message from the dispatcher that a blue and white 1954 or 1955 Chevrolet had been seen in the area of the crime, and then he received another message that the other police unit was following such a vehicle driven by a subject wearing a red and white checked shirt. This auto was driven by defendant. Danks again altered his course to pursue defendant's auto and he reached defendant's auto as it was being halted by the other unit. The evidence shows that upon satisfying himself that defendant matched the description of the robber, but without first checking to see if defendant had a space between his teeth, Danks immediately placed defendant under arrest. Only then was a search of the auto carried out; and in the course thereof the evidence complained of was found and seized.

The description of the robber received by Danks over the telephone was given by Webster who consulted frequently with another person and who told Danks that he was calling from the scene of the robbery and had been present when it occurred. Although Danks did not ask Webster to give his name during the course of the conversation, and Webster did not volunteer that information, it is clear that this call was not intended by Webster to be an anonymous tip. Rather, it appears that in the excitement of the moment the matter of the caller's name was simply overlooked. Danks testified that while he did not ask Webster to give his name, he, Danks, could tell that no attempt at anonymity was being made and that, in any event, a car was being sent to the scene immediately to verify. Webster later testified at the trial and admitted placing the telephone call. The resolution of this case turns upon whether Danks was entitled to rely upon the information he was given by Webster in determining that there was probable cause to believe defendant was guilty of the robbery at the time of the arrest. United States v. Smith, 2 Cir., 308 F.2d 657.

It has long been held in Indiana that a peace officer may arrest a suspect without a warrant when he has reasonable and probable cause for believing that a felony is being, or has been committed by the person arrested. Johns v. State (1956), 235 Ind. 464, 134 N.E.2d 552; Pearman v. State (1954), 233 Ind. 111, 117 N.E.2d 362; Koscielski v. State (1927), 199 Ind. 546, 158 N.E. 902. A police officer may base his belief that there is reasonable and probable cause for arresting a person on information received from another. Long v. State (1929), 89 Ind.App. 496, 167 N.E. 140.

A police officer who takes a telephone call giving him information relevant to the commission of a crime has both the authority and the duty to make a preliminary assessment of its reliability where immediate apprehension of the criminal is possible. This Court should not interfere with the discretionary decision of the police to treat such information as they had received in this case as a credible basis for probable cause in order to effect a swift arrest of the criminal.

Where law enforcement officers are attempting to apprehend a felon in the course of his flight from the scene of the crime, it is often essential for them to rely, at least momentarily, upon uncorroborated and unverified information which they know will be subject to verification within a short time. If the police were required to verify all information they receive as to the commission of a crime before attempting to arrest a felon fleeing the scene of his crime, swift apprehension and arrest would be a practical impossibility in any case such as is presented here.

In the urgency of the moment, there appears to have been no reason for Lt. Danks to believe that the...

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44 cases
  • Brewer v. State, 968S146
    • United States
    • Supreme Court of Indiana
    • November 14, 1969
    ...state, together will all reasonable inferences to be drawn therefrom. Carter v. State (1968), Ind., 234 N.E.2d 850; Capps v. State (1967), 248 Ind. 472, 229 N.E.2d 794; Fisher v. State (1966), 247 Ind. 529, 219 N.E.2d 818; Beatty v. State (1963), 244 Ind. 598, 194 N.E.2d 727. Moreover, this......
  • Greer v. State, 1068
    • United States
    • Supreme Court of Indiana
    • March 16, 1970
    ...would dictate that the police should go to the homes of these two fleeing suspects in their attempt to find them. In Capps v. State (1967), 248 Ind. 472, 229 N.E.2d 794, Judge Hunter speaking for this court 'In our modern mass society, in which a felon can quickly escape to the safety of hi......
  • Smith v. State, 1069S228
    • United States
    • Supreme Court of Indiana
    • July 14, 1971
    ...the officers with probable cause to believe the driver had committed a felony. For a case with similar facts see Capps v. State (1967), 248 Ind. 472, 229 N.E.2d 794. The fact the police officers testified that prior to the seizure of the evidence they had formally arrested appellant only fo......
  • Johnson v. State, 49A05-0106-CR-269.
    • United States
    • Court of Appeals of Indiana
    • April 18, 2002
    ...relayed to Officer Pearsey, the officers who made the stop had probable cause for the arrest of Johnson. See Capps v. State, 248 Ind. 472, 229 N.E.2d 794 (1967) (holding that officers had probable cause to make an arrest based upon information that a robber was driving a certain make, model......
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