Carlisle v. State

• Decision Date: 11 December 1974
• Docket Number: No. 3--574A90,3--574A90
• Citation: 319 N.E.2d 651,162 Ind.App. 396
• Parties: Bobby James CARLISLE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 651

319 N.E.2d 651

162 Ind.App. 396

Bobby James CARLISLE, Appellant, v. STATE of Indiana, Appellee.

No. 3--574A90.

Court of Appeals of Indiana, Third District.

Dec. 11, 1974.

Robert S. Bechert, Deputy Public Defender, Fort Wayne, for appellant.

Theo. L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.

Before HOFFMAN, C.J., and GARRARD and STATON, JJ.

PER CURIAM.

On October 26, 1972, defendant-appellant Bobby James Carlisle was charged by affidavit with possession of a narcotic drug, to-wit: diacetyl morphine, in violation of the Uniform Narcotic Drug Act. See: IC 1971, 35--24--1--2, Ind.Ann.Stat. § 10--3520 (Burns 1956). Following trial to the court, Carlisle was found guilty as charged, ordered committed to the Indiana Department of Corrections for a period of not less than two nor more than ten years and ordered to satisfy costs. Thereafter, his motion to correct errors was overruled and this appeal was perfected.

An examination of the evidence most favorable to the State discloses that at approximately 11:00 P.M. on the evening of October 19, 1972, Officers David York and William Ned Crasper of the Police Department of the City of Fort Wayne, Indiana, detained an automobile which appellant was driving. The officers identified themselves and informed Carlisle that they 'had a federal warrant for his arrest.' Appellant was subsequently requested to remove himself from the automobile and to place his hands upon it. Officer York thereupon attempted to search him. However, at such time Carlisle 'reached in his coat pocket and pulled out a kleenex' which contained 'a two by three inch manila envelope.' Before Officer York could seize his hand, appellant threw the envelope to the rear of the automobile. The officer then walked to the rear of the vehicle, picked up the envelope and conducted a field test upon the substance which the envelope contained. The test indicated the presence of an opiate. Carlisle was thereupon placed under arrest on a preliminary charge of violation of the Indiana Uniform Narcotic Drug Act. Officer York delivered both the kleenex and envelope to the Vice Office property room where both articles were tagged for identification and placed in property box. The property box and room were both locked. On the following morning, Captain Ernest Walter removed the envelope in question from the property box and delivered it to Sergeant Herbert F. Davis, a police department laboratory technician. Sergeant Davis analyzed the substance in the envelope and determined that it contained diacetyl morphine or heroin. Following the analysis, Sergeant Davis returned the envelope to Captain Walter who, in turn, placed it in the Vice Office safe where is remained until Captain Walter brought it to the courtroom at the time of appellant's trial.

The first issue to be considered is whether the trial court erred in admitting into evidence State's Exhibit No. 2 which comprised the envelope and its contents.

Appellnt contends this his arrest was illegal for the reason that Officers York and Crasper did not have a warrant in their possession. It is asserted that the subsequent search was illegal and that the envelope and its contents should therefore have been excluded.

The envelope containing heroin was not obtained in a search incident to an arrest or otherwise. When appellant removed the envelope from his pocket and threw it over the automobile onto the ground, he abandoned it, thus making the evidence subject to lawful seizure by police. State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874.

However, if the abandonment was precipitated by an illegal arrest or detention, this illegality would taint the abandonment, making the involuntarily abandoned property inadmissible. Bowles v. State (1971), 256 Ind. 27, 267 N.E.2d 56; Hardin v. State (1970), 254 Ind. 56, 257 N.E.2d 671.

Carlisle did not abandon the envelope until Police Officers York and Crasper had stopped him and had requested that he exit from his automobile and subject himself to a 'pat down' search. Therefore only if the stop and 'pat down' search were lawful was the...