Cutter v. State

Decision Date15 February 1995
Docket NumberNo. 49A02-9408-CR-468,49A02-9408-CR-468
Citation646 N.E.2d 704
PartiesLarry CUTTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court
OPINION

FRIEDLANDER, Judge.

On December 11, 1992, Larry Cutter was charged with the murder of Linda Berry. On December 15, 1992, Cutter entered a plea of not guilty and discovery ensued on December 23, 1992. On May 9, 1994, Cutter filed a motion to suppress evidence, based upon multiple grounds. On June 28, 1994, the court denied Cutter's motion after a three-day hearing. This case comes before us upon interlocutory appeal of the denial of Cutter's motion to suppress. Cutter presents the following consolidated and restated issues for review:

I. Was the search warrant invalid because it did not comply with statutory provisions governing the issuance of search warrants?

II. Was the search warrant supported by probable cause?

III. Assuming arguendo that the warrant was not supported by probable cause, was the search nevertheless valid because the officers who executed it acted in good faith reliance upon the warrant?

We affirm.

On the evening of Friday, December 4, 1992, a woman summoned police after discovering the body of a woman lying along the muddy shore of the White River in Delaware County. The deceased woman was found lying on her back, with her legs straight and her arms extended over her head. The jeans which the woman was wearing were pulled down to her knees and her blouse was pulled up. The woman's body lacked underwear, shoes, clothing and teeth. Police investigators observed that the body bore strangulation marks upon the neck. Police soon determined through fingerprint identification that the body was that of Linda Berry, who was last seen alive the previous Saturday night at a tavern in Indianapolis. In view of the issues presented by Cutter, the events of the police investigation are of particular importance and will be set out in detail.

Detective Robert Crabbs of the Delaware County Police Department (DCPD) was called to the scene and commenced his investigation before Berry's body was moved. Crabbs determined that the body had been dragged to the spot where it was found. Crabbs also observed tire tracks indicating that a vehicle had been present and had gotten stuck in the mud several times. Crabbs immediately interviewed Cathy Armstrong, the woman who had discovered the body, but Armstrong was unable to provide further information.

The DCPD issued a state-wide dispatch containing a physical description of the body and requesting assistance from other law enforcement agencies in establishing the identity of the deceased. Crabbs received a response concerning a missing person investigation from the Indianapolis Police Department (IPD) and, late in the evening of December 4 or in the early morning hours of December 5, drove to IPD headquarters in Indianapolis. Upon arrival, Crabbs met with IPD detectives Wilson and Wininger to "compare notes" and view photographs.

Based upon his discussion with the IPD detectives, and after viewing photographs, Crabbs determined that the body was that of Linda Berry. The IPD detectives informed Crabbs that their missing person investigation revealed that Berry was last seen at an Indianapolis tavern late on the previous Saturday night, November 28. According to Wilson and Wininger, Berry and several other people, including Cutter, had been sitting at a table in the tavern and drinking. The IPD detectives had interviewed the people drinking with Berry and Cutter. Although it appears that the witnesses did not know Cutter or Berry by name, the witnesses were able to provide physical descriptions of both. According to Wilson and Wininger, at least some of the witnesses, probably three, saw Berry and Cutter leave the tavern together and get into Cutter's car. The witnesses were able to describe Cutter's car.

Prior to Crabbs's arrival, Wininger and Wilson had obtained Cutter's consent to search his car in connection with the missing person investigation involving Berry. Wilson and Wininger reported that Berry's roommate had provided a description of the clothing and jewelry Berry was wearing when she was last seen. Cutter's car had been impounded in order to search for the items described by Berry's roommate. The search of Cutter's car was performed by a technician, and not Wilson or Wininger. When Crabbs traveled to Indianapolis, the car was still impounded pursuant to Cutter's waiver. At the conclusion of the meeting, Crabbs obtained Berry's fingerprints from IPD files and went with Wilson and Wininger to view Cutter's car.

When Crabbs, Wininger, and Wilson arrived at the garage, the technician was still searching the car. Crabbs noted that the inside of the car was cluttered and messy and the outside was muddy. Crabbs instructed the technician to take photographs of the car and remove dirt and carpet samples. Crabbs left the garage and drove back to Muncie at about the same time that Cutter's car was released to Cutter.

Upon returning to Muncie, Crabbs interviewed Jack Jarrett, the owner of the property upon which Berry's body was found. Jarrett, a former police officer, reported that on Monday, November 30, he was in his field when he saw a car, whose description generally matched that of Cutter's car, drive down a lane and stop in the area where Berry's body was found. Crabbs showed a picture of Cutter's car to Jarrett, and Jarrett stated it was "similar" to the car he had seen in the lane. Record at 1273. Jarrett reported that the car had gotten stuck in the mud several times while attempting to leave the property.

Later that day, December 5, Crabbs reviewed all of the reports and discussed the case with his captain, Jerry Cook. Cook determined that they should apply for a search warrant. Crabbs and Cook called Prosecutor Richard Reed, who came immediately to the police station. Reed called Judge Barnet late on the evening of December 5 requesting a search warrant.

Reed taped the conversation. Detective Crabbs was sworn, but Reed was not. Reed proceeded to question Crabbs as follows:

"Q: Officer Crabbs, did you have occasion to participate in the investigation discovery of a deceased human being here in Delaware County yesterday?

A: I did.

Q: Tell the Court what you saw.

A: Just north of County Road 300 South, west of State Road 32, up a lane approximately a quarter of a mile, and east of White River, was a body of a white female, partially clothed along the river bank approximately four or five feet from the waters [sic] edge.

Q: And you say partially clothed, was there evidence of sexual connotations to the discovery of the body?

A: That has been proved through an autopsy, yes." Record at 1536.

* * * * * *

"Q: And have you had occasion through investigation by The Indianapolis Police Department and others to determine when she was last seen alive?

A: According to detectives at the Indianapolis Police Department, missing person's division, Wilson and Winegar [sic], who were investigating the missing person of one said Linda Berry, they have a report on file and through the fingerprints have identified her as that person.

Q: Have they taken statements from witnesses who last saw her alive in the presence of another person?

A: They have taken statements from those people, yes.

Q: Do you know those people's names?

A: No, I do not.

Q: How many people are there that have reported seeing her alive?

A: Five (5) people.

Q: And those five (5) people have indicated she was in the presence, she had left a tavern in Indianapolis, is that correct?

A: That's correct.

Q: And in the company of who?

A: In the company of one Mr. Cutter.

Q: Is that Larry Cutter?

A: Larry Cutter." Record at 1537-8.

Crabbs testified that detectives Wilson and Wininger had spoken with Cutter, who had signed a consent for the police to search his car. Crabbs reported that he had seen the vehicle and noted that it was very muddy, and that it was cluttered inside, with "a lot of things strewn around inside the car laying in the floor." Record at 1539. Crabbs further testified:

"Q: Are you concerned also with attempting to locate a women's blue jean jacket with a white fleece lining, a gold necklace with a half-moon pendant, an Irish friendship ring which matches a ring worn by the victim's roommate and some women's white Reebok tennis shoes?

A: That's correct. All those items were reported as being worn by the victim at the time she turned up missing.

Q: Who reported that?

A: The roommate of the victim.

Q: And do you know that person's name.

A: No, I don't." Record at 1539-40.

Reed then described Cutter's vehicle and house and asked Crabbs if he wanted to search them, to which Crabbs responded in the affirmative. Reed questioned Crabbs about his interview with Jarrett as follows:

"Q: And with respect to the automobile itself have you also talked to a witness who actually saw that automobile parked on the lane?

A: I talked today and took a statement from Jack Jarrett (sp) who is the owner of the property where the body was found who on Monday, 11/29 [sic] of '82--of '92, did observe that vehicle approximately a quarter of a mile off of the road on that lane.

Q: And did he tell you about observing that vehicle leave those premises apparently in a hurry and get stuck several times?

A: The subject, in trying to back out, got stuck several times; did finally make it to the road and went west on 300 West to 850 or 300 South to 850 West, then north past the old cemetery." Record at 1543.

After Crabbs completed his testimony, Judge Barnet recited the warrant, which Reed read into the record as follows "State of Indiana, Delaware County, SS: Search Warrant. In the Superior Court # 1 of Delaware...

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