Cheeks v. State
| Citation | 155 Ind.App. 277,292 N.E.2d 852 |
| Decision Date | 21 February 1973 |
| Docket Number | No. 2--572A1,2--572A1 |
| Parties | Whealer CHEEKS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Court of Appeals of Indiana |
Robert E. Hughes, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Anthony J. Metz, III, Deputy Atty. Gen., for appellee.
Defendant-appellant Whealer Cheeks (Cheeks) was found guilty by the Marion County Criminal Court, Division One, of Possession of Heroin in violation of the 1935 Narcotics Act (as amended) and seeks reversal because of admission of 'tainted' evidence secured as the product of an illegal warrantless arrest (lack of probable cause).
We affirm.
A recital of the evidence most favorable to the State and the judgment below is as follows
On July 7, 1971, Indianapolis Police Officers Crawford and Mukes were approached in the 2500 block of Martindale Avenue by an informant who told them that Cheeks had narcotics in his possession. After determining the informant had no narcotics in his possession they provided him with money with which to make a purchase from Cheeks. Keeping the informant under constant surveillance (with a pair of field glasses), the officers watched as the informant entered Douglas Park from Martindale Avenue and approached Cheeks. The officers observed an exchange take place between them, but were too far away to discern the object exchanged. Still under surveillance, the informant returned to the officers and handed them a package containing a white substance, which, when field tested, proved to be heroin.
The officers then entered the park and approached Cheeks, who stood up and began to walk away from them. As he did so the officers observed that he dropped an aspirin can to the ground. While Crawford asked Cheeks for identification, Mukes retrieved the can and field tested its contents, establishing that it contained heroin. Cheeks was arrested and charged with the possession of the heroin found in the aspirin can.
On February 11, 1972, a hearing was held on Cheeks' Motion to Suppress Evidence which consisted of the narcotics found in the aspirin can. During the hearing, Officer Crawford testified that the informant was known to him and had been used 'several times' in the past, on which occasions convictions had been obtained. The trial court in overruling the Motion to Suppress found probable cause existed to arrest Cheeks without a warrant and that the narcotics dropped by Cheeks were therefore admissible in evidence.
At the trial, the testimony regarding the reliability of the informant was not repeated. After overruling Cheeks' objection to the admission of the narcotics, the court found Cheeks guilty of Possession of Heroin and sentenced him to not less than two nor more than ten years imprisonment.
While Cheeks' Brief fails to meet some of the requirements of Rule AP. 8.3, it does present three issues for determination:
ISSUE ONE. Did the trial court err in overruling the Motion to Suppress Evidence because there was lack of probable cause for Cheeks' warrantless arrest?
ISSUE TWO. Must the State prove as part of its case-in-chief that Cheeks' arrest was lawful in order to introduce evidence of Cheeks' possession of narcotics?
ISSUE THREE. Did the use of an informant to purchase narcotics from Cheeks under these circumstances constitute entrapment?
Relating to ISSUE ONE, Cheeks maintains the arrest was faulty because the officers were at such a distance from the transaction they could not see money or narcotics change hands and therefore the arrest was illegal and the evidence stemming from it inadmissible as 'fruit of the poisonous tree.'
The State counters that the officers not only had reliable information prior to the arrest, but verified that information by having the informant purchase narcotics from Mcheeks, thus assuring probable cause for the arrest.
As to ISSUE TWO, Cheeks argues that the State must reintroduce evidence as to the reliability of the informant during the trial itself in order to establish probable cause for the arrest.
The State answers that the court may take judicial notice of the admissibility of evidence introduced in a prior proceeding which was the product of a search incident to a lawful arrest.
Relating to ISSUE THREE, Cheeks raises for the first time on appeal the contention that the unjustifiable use of the informant constituted entrapment, and that all subsequent investigation was therefore tainted.
ISSUE ONE.
CONCLUSION--It is our opinion that, because probable cause existed for Cheeks' warrantless arrest, the trial court properly overruled Cheeks' Motion to Suppress Evidence.
The burden was on the State at the Suppression Hearing to establish probable cause for Cheeks' warrantless arrest and the seizure of narcotics in Cheeks' possession incident to that arrest: Smith v. State, post. It did so by showing information received by the police came from a reliable informant whose information on previous occasions resulted in convictions.
In addition, the police officers provided the informant with money with which to make the narcotics purchase after first searching him to be certain there were no narcotics on his person. Keeping the informant under continuous surveillance with a pair of field glasses, they then watched him approach Cheeks make an exchange, and return to the officers. On his return, the informant presented the officers with a tinfoil packet which, when field tested by the officers, proved to contain heroin.
This careful procedure more than satisfied the test for probable cause expounded in Smith v. State (Ind.1971), 271 N.E.2d 133, 136:
When...
To continue reading
Request your trial
-
Smith v. State
...290 N.E.2d 47; Wells v. State (1971), 256 Ind. 161, 267 N.E.2d 371; Sankey v. Staet (1973), Ind.App., 301 N.E.2d 235; Cheeks v. State (1973), Ind.App., 292 N.E.2d 852. The question of the legality of Smith's arrest in any of its remifications has been ISSUE TWO. CONCLUSION--It is our opinio......
-
Gilman v. State
...does not bear on the guilt or innocence of the accused but rather only extends to the admissibility of evidence. See Cheeks v. State, (1973) 155 Ind.App. 277, 292 N.E.2d 852; Martin v. State, (1978) Ind.App., 374 N.E.2d 543. Hence, this was a question to be resolved by the court and not the......
-
Lynch v. State
...Ind., 290 N.E.2d 47; Bryant v. State (1972), Ind., 278 N.E.2d 576; Smith v. State (1974), Ind.App., 316 N.E.2d 463; Cheeks v. State (1973), Ind.App., 292 N.E.2d 852. The record reveals that the trial court properly suppressed evidence resulting from the illegal search and admitted only the ......
-
State v. Johnson
...Moreover, the burden is on the State at the suppression hearing to establish that the officer had probable cause. Cheeks v. State (1973), 155 Ind.App. 277, 292 N.E.2d 852. The Court of Appeals will affirm the trial court order suppressing evidence if any valid ground exists to support it. S......