Dearing v. State

• Decision Date: 25 May 1948
• Docket Number: 28399.
• Citation: Dearing v. State, 226 Ind. 273, 79 N.E.2d 535 (Ind. 1948)
• Parties: DEARING v. STATE.
• Court: Indiana Supreme Court

79 N.E.2d 535

226 Ind. 273

DEARING v. STATE.

No. 28399.

Supreme Court of Indiana

May 25, 1948

Appeal from Vanderburgh Circuit Court; Nat H Youngblood, judge.

Nicholas W. Serfana, of Indianapolis, for appellant.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, 1st Deputy Atty Gen., and Merl M. Wall, Deputy Atty. Gen., for appellee.

YOUNG Chief Justice.

Appellant was convicted of grand larceny and upon this appeal challenges the sufficiency of the evidence and the validity of a search of appellant's room, made without a warrant which discovered damaging evidence used at his trial.

We will consider first the search of appellant's room which the appellee seeks to justify only upon the ground that appellant consented thereto and thereby waived his constitutional immunity to unreasonable search or seizure.

Appellant was charged with stealing $585.00 in currency alleged to belong to one H. W. McGrew on August 21, 1947.There was evidence that appellant was about the McGrew home on the day and in the evening of August 21, 1947; that McGrew had left his billfold under one of the cushions of a couch in a downstairs room; that it contained five $100.00 bills, a $50.00 bill, a $20.00 bill and a $10.00 bill; that early in the evening he went upstairs and forgot to take his billfold with him; that appellant was the only person who was in the house that evening after McGrew went upstairs to bed, except McGrew's wife and daughter, although it appeared that it was a hot evening and the doors and windows were open until the house was closed for the night.

The next morning McGrew remembered leaving his billfold under a cushion on the davenport and went downstairs to get it, but it was missing.He notified the police and told them that he suspected appellant.

Two police officers then went to appellant's room some distance away.It is uncontradicted that when the officers arrived at appellant's room they knocked on his door and told him who they were; that he was in bed but got up and unhooked the screen door and let them in; that they asked permission to search his room, which he gave, and even helped them in their search.Every witness at the hearing on the motion to suppress the evidence, however, including both police officers, testified that the police officers had told appellant of the lost money and that if he did not consent to a search they would take him down and lock him up and obtain a search warrant, and that it was only after such statements that he consented to the search.The search was made.McGrew's billfold was not found, but appellant's billfold was found concealed in the pillowslip on appellant's bed and contained five $100.00 bills, a $20.00 bill, a $10.00 bill and a $5.00 bill.

Appellant moved to suppress the evidence obtained by the search, which was overruled.At appellant's trial the officers were permitted to testify as to what they found in the course of their search, over an objection that the evidence sought to be elicited was gained as a result of an unlawful search, and the money found was likewise permitted to be introduced in evidence over appellant's objection based upon the same ground.

A search of premises, with the consent of the accused, is not unlawful and evidence obtained upon such search may properly be used in the prosecution of the accused.Shuck v. State,1944, 223 Ind. 155, 167, 59 N.E.2d 124;22 C.J.S., Criminal Law, § 657.Such consent, however, must be voluntarily and understandingly given, Shuck v. State, supra, and may not be induced by coercion, duress, or fraud.Meno v. State,1925, 197 Ind. 16, 24, 164 N.E. 93;Conner v. State,1929, 201 Ind. 256, 259, 167 N.E. 545;Amos v. United States,1921, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654, 656;Anne Johnson v. United States,333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436.

In Conner v. States, supra, a search warrant was read to the accused's wife who was alone at home and she said in substance that the officer was welcome to search and invited him in.It developed that the search warrant was faulty and the State had to rely upon consent to justify the search, but this court held that such consent was not sufficient and said [201 Ind. 256, 259, 167 N.E. 546], 'But upon the language used by the wife while under the restraint of the writ which had been served upon her, a waiver of the constitutional right, and an invitation to search and seize may not be predicated.'

In Meno v. State, supra, much the same situation was presented and this court held that the acquiescence in search was not an invitation to the search but was submission to the law and that search was not justified upon the ground of consent.We said on page 24 of 197 Ind., on page 96 of 164 N.E.: 'An invitation to search one's person or possessions, and seize a person or property, under the Constitution must be free...