Corrao v. State

• Decision Date: 18 December 1972
• Docket Number: No. 3--672A17,3--672A17
• Citation: 154 Ind.App. 525,290 N.E.2d 484
• Parties: Ronald Andrew CORRAO et al., Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 484

290 N.E.2d 484

154 Ind.App. 525

Ronald Andrew CORRAO et al., Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--672A17.

Court of Appeals of Indiana, Third District.

Dec. 18, 1972.

Rex L. Reed, Rasor, Harris, Garrard & Lemon, Warsaw, for defendants-appellants.

Theodore L. Sendak, Atty. Gen., John McArdle, Deputy Atty. Gen., for plaintiff-appellee.

HOFFMAN, Chief Judge.

This appeal is from the conviction of four defendants of the crime of unlawful possession of marijuana. The defendants-appellants, Ronald Andrew Corrao, Michael D. Goulet, Sheri A. Daufen and Mary E. Mannion, were charged by affidavit in two counts. The defendants were tried to the court without the intervention of a jury, and were found guilty of the crime of unlawful possession of a dangerous drug, namely, cannabis, more commonly known as marijuana, as charged in Count II of the affidavit. Corrao and Goulet were each fined in the penal sum of $500 and sentenced to be imprisoned in the Indiana State Prison for an indeterminant period of not less than one year, nor more than ten years. Such sentences were suspended and Corrao and Goulet were placed on probation for a period of two years. Daufen and Mannion were each fined in the penal sum of $500 and sentenced to be imprisoned in the Indiana Women's Prison for not less than one year nor more than ten years. Such sentences were suspended and Daufen and Mannion were placed on probation for a period of two years. The timely motion to correct errors filed by the defendants was overruled and this appeal followed.

Prior to trial, defendants-appellants filed a motion to suppress evidence on the ground that the seizure of the bags from the trunk of the automobile was the fruit of an unconstitutional search. The overruling of such motion by the trial court is the first error assigned and argued by defendants-appellants in this appeal. $The trial court conducted a hearing on the motion to suppress wherein the following evidence was adduced:

Deputy Sheriff Richard Mikel was proceeding to his home from the Sheriff's Department at approximately 3:30 A.M., on August 3, 1971. On his citizens' band radio he received a call from Gordon Teeple that there was a car with a Wisconsin plate 'messing around' in the marijuana area. Mikel proceeded to the location given by Teeple. Mikel testified that marijuana was growing in abundance in that particular area of the county.

Officer Mikel located the car and followed it for approximately four miles. He went around the Wisconsin car and stopped it, purportedly for failing to dim the headlights. Mikel approached the car and asked the driver, identified as Corrao, to see his driver's license. Corrao had none.

Corrao had turned the window of the car down to talk to mikel. Mikel was within a foot and a half of the windows when he smelled marijuana coming from the car. Mikel subsequently asked Corrao, the driver, if he 'could go through the car.' Corrao gave his permission, however, Mary Mannion, who identified herself as the owner of the vehicle, violently protested. Deputy Mikel then searched the car and found three plastic bags and one mailbag of marijuana in the trunk.

A warrantless search of a vehicle is not unconstitutional provided the seizing officer has reasonable and probable cause to believe that the contents of the vehicle offend against the law. Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v. Maroney (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 2034 29 L.Ed.2d 564; Paxton v. State (1970), Ind., 263 N.E.2d 636.

In the instant case, on August 3, 1971, at approximately 3:30 A.M., Deputy Mikel was directed to a white, 1964 Ford with Wisconsin license plates which was eported to be 'messing around' in an area where marijuana was known to grow in abundance. Officer Mikel stopped a car matching the description he had been given, and during the course of his investigation smelled the odor of freshly cut marijuana coming 'out of the car.' Under the authorities hereinabove cited, probable cause existed for Deputy Mikel to search the vehicle.

Notwithstanding the above conclusion, our decision on this issue must be against the appellants for another, entirely separate, reason. The record before us indicates that at the trial no objections were made that the evidence was the fruit of an illegal search and seizure. State's Exhibit No. 1 consisted of a clear plastic bag purportedly containing a portion of the marijuana taken from the trunk of the vehicle in which the defendants were passengers. The only recorded objection to the admission into evidence of State's Exhibit No. 1 was that the contents of the bag had 'no surface trustworthiness.'

In Harrison v. State (1972), Ind., 281 E.2d 98, at 99, it is stated:

'We do not pass on the question as to whether or not the motion to suppress was properly overruled for even if we assume for the sake of argument that the motion to suppress was erroneously overruled, that question was waived by appellant when counsel for the appellant expressly stated that he had no objection to the admission of the questioned objects into evidence. * * * An Indiana Appellate Court decision dealing with this precise question stated that if on trial a defendant does not object to evidence obtained by an illegal search warrant he cannot complain of the action of the trial court in overruling his motion to suppress. Worrell v. State (1930), 91 Ind.App. 259, 171 N.E. 208. Other jurisdictions have taken this same approach. See 50 A.L.R.2d 531, 591.'

The failure of the defendants to properly object at trial waived the error alleged in the overruling of their motion to suppress. Chandler v. State (1929), 89 Ind.App. 304, 166 N.E. 289; Harrison v. State, supra.

Appellants next contend that 'the conviction of appellants should be overturned and that any evidence obtained from appellants should have been suppressed because of the State's failure to properly advise appellants at the time they were deprived of their freedom of action that they had specific rights secured under the holding in Miranda v. State of Arizona supra, ((1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).'

The evidence is uncontroverted that appellants were not given the 'Miranda warnings' at the time of arrest, but were taken to the jail where they were booked and then advised of their rights. Except for the preliminary investigation at the scene, the record before us does not indicate that appellants were asked any questions between the time they were taken into custody and the time they were booked. When they were booked, appellants were advised of their rights and were asked if they would care to talk. Officer Minear testified that appellants refused to sign 'the waivers' and 'said they would rather have a lawyer.'

In miranda, at 478--479 of 384 U.S., at 1630 of 86 S.Ct., at 726 of 16 L.Ed.2d, it is stated:

'To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. ...