Cato v. State, No. 1-878A216

Docket NºNo. 1-878A216
Citation180 Ind.App. 483, 389 N.E.2d 332
Case DateMay 10, 1979
CourtCourt of Appeals of Indiana

Page 332

389 N.E.2d 332
180 Ind.App. 483
Steven D. CATO and Onice Fields, Appellants,
v.
STATE of Indiana, Appellee.
No. 1-878A216.
Court of Appeals of Indiana, First District.
May 10, 1979.

Robert L. Arthur, Havill & Arthur, Washington, for appellants.

Theo. L. Sendak, Atty. Gen., Victoria R. VanDuren, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendants-appellants Onice Fields and Stephen Cato were found guilty by a jury in Washington Circuit Court of second-degree burglary under Ind.Code 35-13-4-4, since repealed, and were sentenced to be imprisoned for not less than two nor more than five years.

They appeal, raising two issues for our review:

Page 334

1) Whether the trial court erred in denying their motion to suppress physical evidence found by Georgia police in the trunk of their car in alleged contravention of the Fourth and Fourteenth Amendments to the United States Constitution; and

2) Whether the evidence was sufficient to support the verdict.

We affirm Field's conviction and reverse Cato's conviction.

ISSUE I.

The defendants argue that certain evidence should not have been admitted at their trial for either of two reasons: 1) their initial stop by Georgia police was illegal because the police stopped them without probable cause and on mere suspicion alone; or 2) the subsequent search of their car was illegal because Fields' consent to the search was not freely and voluntarily given.

In reviewing a trial court's determination of the validity of a search, the appellate tribunal considers the evidence favorable to the trial court's ruling and any uncontradicted contrary evidence, and upholds the trial court's ruling if it is supported by the evidence. Bruce v. State, (1978) Ind., 375 N.E.2d 1042.

The record shows the following evidence concerning the stop and search of Fields' car by Georgia police. Two officers of the Newton County Sheriff's Department, Newton County, Georgia, received radio dispatches from department headquarters to proceed to the Pony Express Diner to investigate an out-of-state black over green Buick automobile and its occupants who, according to some unnamed source, were attempting to sell firearms from the trunk of the car. The sale of firearms without a license is a crime in Georgia.

One officer positioned his car behind a nearby sale barn where he could observe a car which fit the description and which was parked at the side of the diner. The other officer positioned his car along the road about one-fourth mile south of the diner. The first officer observed Fields and Cato leave the diner, open the trunk of the car, look into the trunk for a short time, get into the car, and proceed north with Fields driving.

The officer who was parked south of the diner drove north and followed the car approximately a mile, then signaled it to pull over, which it did. Fields and Cato exited the car as the officer approached. Two other officers in two more sheriff's cars arrived on the scene.

The officer who had stopped the car requested Fields' driver's license and identification from both Fields and Cato. Fields had no license and no identification; Cato had a Social Security card. The officer informed Fields he was under arrest for driving without a license. The officer asked the two what they were doing in Georgia and requested permission to look in the car trunk, advising Fields that he did not have to consent. Fields expressed his consent, either verbally or by nodding his head to Cato who took a key from his pocket and opened the trunk. Inside the trunk, the officers found firearms which had been stolen from a retail store near Salem in Washington County, and whose serial numbers had been entered in the National Crime Investigation Center information network. Some of these firearms were admitted into evidence after the trial court's denial of defendants' motion to suppress.

Initially, we must concede that the defendants are correct in their contention that the State failed to prove the existence of probable cause to arrest Fields and Cato when the police stopped their car. Probable cause for an arrest is defined to be facts and circumstances known to the arresting officer which would warrant a man of reasonable caution and prudence in believing that the accused had committed or was committing a criminal offense. Luckett v. State, (1972) 259 Ind. 174, 284 N.E.2d 738. We have held, however, that the record need not reveal that the arresting officer personally had in his mind knowledge sufficient to establish probable cause. Francis

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v. State, (1974) 161 Ind.App. 371, 316 N.E.2d 416.

In Francis, we said, at 418:

"In our opinion, the existence of probable cause for an arrest should be determined on the basis of the collective information known to the law enforcement organization as a whole, and not solely on the personal knowledge of the arresting officer. The police force is considered as a unit and where there is a police-channel communication to the arresting officer and he acts in good faith thereon, the arrest is based on probable cause when such knowledge and information exist within the department."

The dispatch from sheriff's headquarters to the patrolman was apparently based on information or a "tip" received from some third source. Probable cause in such instances may be established by showing the previously determined reliability of the informant or by the verification of extrinsic facts which import reliability to the tip sufficient to render reasonable the conclusion of the tipster. Carson v. State, (1975) 164 Ind.App. 24, 326 N.E.2d 624.

In the case at bar, the above-recounted evidence stood alone. No testimony was offered to establish that anyone in the sheriff's department had any knowledge of the reliability of the informant, and the officer's personal observations of Fields and Cato merely leaving the diner and looking in the car trunk would not, in any way, serve as sufficient verification to import reliability to the tip thus rendering reliable the conclusion of the tipster that Fields and Cato were committing or had committed a criminal offense.

This lack of probable cause does not render the stop illegal, however, because we find that the officer made a lawful investigatory stop. In Clark v. State, (1977)...

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3 practice notes
  • Cato v. State, No. 1179S310
    • United States
    • Indiana Supreme Court of Indiana
    • 8 Noviembre 1979
    ...the conviction of Fields but reversed Cato's conviction because of the insufficiency of the evidence. Cato v. State, (1979) Ind.App., 389 N.E.2d 332. Their decision was based upon their determination that the evidence was insufficient to prove that Cato was involved in the burglary since th......
  • Yeshiva University v. Fidelity and Deposit Co. of Maryland
    • United States
    • New York Supreme Court Appellate Division
    • 25 Marzo 1986
    ...from the time final payment fell due under the subcontract (CPLR 213[2]; see, City of New York v. State of New York, 40 N.Y.2d 659, 668, 389 N.E.2d 332, 357 N.E.2d 988). But Fidelity's obligation on the bond, though substantively derived from Laboratory's liability on the subcontract, was, ......
  • State v. Mooney, No. 2-375A68
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Diciembre 1979
    ...render reasonable the conclusion of the tipster. Carson v. State, (1975) 164 Ind.App. 24, 326 N.E.2d 624. Cato v. State (1979), Ind.App., 389 N.E.2d 332, The tip in the instant case, falling short of requirements set forth in Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d ......
3 cases
  • Cato v. State, No. 1179S310
    • United States
    • Indiana Supreme Court of Indiana
    • 8 Noviembre 1979
    ...the conviction of Fields but reversed Cato's conviction because of the insufficiency of the evidence. Cato v. State, (1979) Ind.App., 389 N.E.2d 332. Their decision was based upon their determination that the evidence was insufficient to prove that Cato was involved in the burglary since th......
  • Yeshiva University v. Fidelity and Deposit Co. of Maryland
    • United States
    • New York Supreme Court Appellate Division
    • 25 Marzo 1986
    ...from the time final payment fell due under the subcontract (CPLR 213[2]; see, City of New York v. State of New York, 40 N.Y.2d 659, 668, 389 N.E.2d 332, 357 N.E.2d 988). But Fidelity's obligation on the bond, though substantively derived from Laboratory's liability on the subcontract, was, ......
  • State v. Mooney, No. 2-375A68
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Diciembre 1979
    ...render reasonable the conclusion of the tipster. Carson v. State, (1975) 164 Ind.App. 24, 326 N.E.2d 624. Cato v. State (1979), Ind.App., 389 N.E.2d 332, The tip in the instant case, falling short of requirements set forth in Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d ......

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