Cooper v. State

Decision Date30 November 1976
Docket NumberNo. 2--773A170,2--773A170
Citation357 N.E.2d 260,171 Ind.App. 350
Parties, 92 A.L.R.3d 36 Richie Allen COOPER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court
Paul E. Peach, Indianapolis, for appellant

Theodore L. Sendak, Atty. Gen., Glenn A. Grampp, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANA, Presiding Judge.


This is an appeal by Defendant-Appellant, Richie Allen Cooper (Cooper), from a trial court judgment convicting him of Possession of Injection Equipment (Count One) and Possession of Narcotics (Count Two), claiming that evidence presented at trial was the product of an illegal search and seizure and that the evidence was insufficient to sustain his convictions.

We affirm.


The facts and evidence most favorable to the State are:

On the evening of July 22, 1972, Indianapolis police officer, Theodore Hardy, was working as a security guard and parking lot attendant at LeChalet Restaurant at 1820 North Meridian Street in Indianapolis. He observed Cooper drive a 1964 green Chevrolet with two male passengers into the alley at the rear of the restaurant. Cooper stopped the car and all three men got out. Hardy then saw Cooper walk across the restaurant parking lot to the passenger's side of a green Buick belonging to Frank Kinney, a restaurant customer, and enter Kinney's Buick.

Because Hardy had recently parked Kinney's auto for him, he approached and asked Cooper what he was doing. When Hardy identified himself as a police officer, Cooper's companions fled. Hardy told Cooper As Hardy put Cooper in the back seat of his patrol car, he noticed heavy track marks indicating narcotics use on Cooper's arms. He then walked to the nearby Chevrolet which Cooper had parked in the alley. Standing by the driver's side he could see a small package with a needle sticking out of it lying on the driver's side of the front seat. He picked up the package and found that it contained a bottle cap with burn marks on the bottom, a syringe with a needle attached, and three needle covers.

to get out of the car and placed him under arrest.

On July 24, 1972, Cooper was charged by Affidavit with Possession of Injection Equipment and Third Degree Burglary. The affidavit was subsequently amended to charge Possession of Injection Equipment and Possession of Heroin.

On January 12, 1973, Cooper filed a Motion to Suppress Evidence which had been seized from the car, contending it was the product of an illegal search. After a hearing the trial court entered the following order on March 21, 1973:

Defendant's Motion to Suppress is overruled us to that part that was clearly visible in the vehicle, i.e.: a needle, it is sustained as to the contends of that which was wrapped up in the front seat of the vehicle.

A bench trial was held on March 26--27, 1973.

The State offered as evidence during the trial three exhibits which had been found in the car: Exhibit No. 1, the syringe needle which had been found sticking out of the white paper wrapper, and three needle covers; Exhibit No. 2, a bottle cap with burn marks on the bottom; and Exhibit No. 3, the white paper wrapper. When Cooper objected to the admission of these exhibits, the State orally requested the trial judge (who was not the same judge who had ruled on the Motion to Suppress) to reconsider the ruling on the Motion to Suppress. Because the trial judge was unclear as to what evidence had actually been suppressed at the prior hearing, he granted the request and ultimately admitted all the evidence which had previously been suppressed. At the behest of the defense, he agreed to review the transcript from the Motion to Suppress hearing, and after doing so decided that all the evidence was properly admissible.

Cooper was found guilty as charged and was sentenced to a term of one (1) to five (5) years on Count One (Possession of Injection Equipment) and two (2) to ten (10) years on Count Two (Possession of Narcotics). Cooper timely filed a Motion to Correct Errors which was overruled. This appeal follows.


Three issues are presented for our consideration: 1

ISSUE ONE--Did the trial court err in its reconsideration of Cooper's Motion to Suppress in that the State failed to file a Motion for Reconsideration and offered no basis for reconsideration?

ISSUE TWO--Was the admission of State's exhibits 1 and 2 error for the reason that they were obtained as a result of an illegal search and seizure?

ISSUE THREE--Was the evidence sufficient to sustain convictions for possession of narcotics and for possession of instruments adapted to the use of narcotics?

PARTIES' CONTENTIONS--As to ISSUE ONE, Cooper contends that his procedural rights were denied because the State failed to file a written petition for reconsideration of Cooper's Motion to Suppress or to offer a basis for reconsideration.

The State's response is that the uncertainty as to what evidence had been suppressed made reconsideration necessary.

As to ISSUE TWO, Cooper claims the State failed to show that the search and seizure fell within one of the recognized exceptions to the warrant requirement . . . and the State contends there was probable cause for the search.

As to ISSUE THREE, Cooper's position is that the evidence was insufficient to show he was in possession of narcotics and instruments adapted to the use of narcotics, that he had the specific intent required for conviction of possession of instruments adapted to the use of narcotics, or that a sufficient amount of narcotic was found to sustain a conviction for possession of narcotics.


CONCLUSION--It is our opinion that the trial court did not err in reconsidering Defendant's Motion to Suppress. A decision on a Motion to Suppress is not a final judgment. It is in fact nothing more than a ruling on a motion in a pending case which is subject to reconsideration. Gasaway v. State (1967), 249 Ind. 241, 231 N.E.2d 513.

At the trial Cooper objected to the admission of evidence previously suppressed, but he did not object because the State had failed to file a written motion for reconsideration and state the grounds therefor.

It is a well settled rule of appellate practice that error may not be predicated on the admission of evidence unless there was timely and specific objection in the trial court. Harrison v. State (1972), 258 Ind. 359, 281 N.E.2d 98; Winston v. State (1975), Ind.App., 332 N.E.2d 229; Hendley v. State (1974), Ind.App., 311 N.E.2d 849.

A failure to object at trial on the grounds argued on appeal constitutes a waiver and preserves no issue for this court to determine. Garner v. State (1975), Ind.App., 325 N.E.2d 511.

Thus, Cooper has waived his right to object to the State's failure to file a written motion for reconsideration. Even were this not so, it is difficult to see how Cooper was harmed by the fact that the State made an oral motion for reconsideration instead of filing a formal petition.

It is our opinion that there was sufficient basis for reconsideration in this case. The record reveals that the court was unable to determine with certainty from the face of the suppression order alone what evidence had been suppressed. 2

Under these circumstances it was proper for a Judge who did not rule on the Motion to Suppress to reconsider the evidence and the circumstances surrounding its seizure.


CONCLUSION--The admission of Exhibits One (a needle, syringe and three needle covers) and Two (a bottle cap with burns in the bottom of it) was not error i.e., such evidence was not the product of an illegal search.

A search warrant is a condition precedent to a valid search and seizure. Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; Ludlow v. State (1974), 262 Ind. 266, 314 N.E.2d 750.

If a warrantless search occurs, it is incumbent on the State to demonstrate that the police action fell within one of the well established exceptions to the warrant requirement. Vale v. Louisiana (1970), 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed. 409; Ludlow v. State (1974), 262 Ind. 266, 314 N.E.2d 750; Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133; State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874.

A warrantless search and seizure is lawful if the officer has probable cause to suspect the area searched contains items which the officer is entitled to seize. Chambers v. Maroney (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Lloyd v. State (1975), Ind.App., 335 N.E.2d 232; Tyler v. State (1973), Ind., 292 N.E.2d 630; Issac v. State (1971), 257 Ind. 319, 274 N.E.2d 231; Patterson v. State (1970), 253 Ind. 499, 255 N.E.2d 520.

Our inquiry, then, is to determine if the circumstances of this case are such as to indicate probable cause for Officer Hardy to open the package he found on the front seat of the auto driven by Cooper.

He testified that as he put Cooper in his patrol car preparatory to taking him to police headquarters, he noticed heavy track marks on Cooper's arms. Because he had arrested Cooper it became necessary for him to arrange for removal of Cooper's car parked in the alley.

Hardy walked over to the car for the purpose of checking it for valuables. As he stood there looking in the window, he noticed a small package with a needle sticking out of it lying on the front seat on the driver's side. Clearly, Officer Hardy had a right to stand in the alley and look into Cooper's car. Thus, the needle and package were subject to seizure under the 'plain view' exception to the warrant requirement. Objects falling in plain view of an officer who has a right to be in a position to have that view are subject to seizure without a warrant. Ford v. State (1971), 257 Ind. 498, 275 N.E.2d 808; Alcorn v. State (1970), 255 Ind. 491, 265 N.E.2d 413; Presley v. State (1972), 152 Ind.App. 637, 284 N.E.2d 526.

The combination of the needle marks on Cooper's arms and his view of the needle in...

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