Cato v. State

• Decision Date: 10 May 1979
• Docket Number: No. 1-878A216,1-878A216
• Citation: 180 Ind.App. 483,389 N.E.2d 332
• Parties: Steven D. CATO and Onice Fields, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

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Cato were found guilty by a jury in Washington Circuit Court of second-degree burglary under Ind.Code 35-13-4-4, since repealed, and were sentenced to be imprisoned for not less than two nor more than five years.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 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 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) Ind.App., 358 N.E.2d 761, we said, at 763:

"Although (the defendant) asserts that the information was received from a source where credibility and reliability were not established, when acting upon information received in a radio dispatch, a police officer is not required to ascertain the reliability and credibility of the initial source of the information. Moreover he must of necessity rely upon the communication system of the police headquarters where, as here, the use of an automobile compels officers to act with greater speed and less hesitancy. Manson, et al. v. State (1967), 249 Ind. 53, 229 N.E.2d 801, Cert. denied, 390 U.S. 995, 88 S.Ct. 1198, 20 L.Ed.2d 95. The reasonableness of an investigatory stop based upon information received in a radio dispatch must therefore be measured against the objective standard prescribed in Terry v. Ohio (1968), 392 U.S. 1, at 21-22, 88 S.Ct. 1868, at 1880, 20 L.Ed.2d 889, where the court stated:

'(W)ould the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate?' "

Upon receiving the dispatch, the officers proceeded immediately to the spot where the described vehicle was said to be located. They observed there a vehicle which fit the description, in addition to behavior on the part of its occupants which denoted an unexplained interest in the contents of the car's trunk where firearms were reported to be located. We hold that these facts would warrant a man of reasonable caution to believe an investigation was appropriate. A legal investigatory stop was made.

Defendants next contend that Fields' consent to the search of his car was invalid, again for either of two reasons: 1) Fields was not advised of his Fourth Amendment rights and his right to counsel before he consented; or 2) his alleged consent was merely passive submission to a search that was going to occur whether or not he consented. Defendant rely solely on Pirtle v. State, (1975) 263 Ind. 16, 323 N.E.2d 634, and Sayne v. State, (1972) 258 Ind. 97, 279 N.E.2d 196, to support their contentions.

Consent to a search validates the ensuing search when the consent is freely and voluntarily given. Bruce v. State, (1978) Ind., 375 N.E.2d 1042. The test for voluntariness in this context, as provided by the United States Supreme Court in Schneckloth v. Bustamonte, (1973) 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, is whether a defendant's will was overborne in a particular case by duress or coercion, express or implied.

The determination of the voluntariness of an alleged consent to search is a question of fact to be determined from the totality of the circumstances surrounding its giving. Schneckloth, supra; Bruce, supra. No one circumstance has been found to be dispositive; many circumstances have been found to be relevant.

In Schneckloth, supra, the U.S. Supreme Court hold, in 412 U.S. at 248, 93 S.Ct. at 2059:

"(W)...