Dolan v. State

Citation178 Ind.App. 127,381 N.E.2d 543
Decision Date24 October 1978
Docket NumberNo. 3-577A133,3-577A133
PartiesPatrick M. DOLAN and Gregory S. Colter, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Eugene N. Chipman, Chipman, Morrison & Humphrey, Plymouth, for Patrick M. Dolan.

Kenneth M. McDermott, Plymouth, for Gregory S. Colter.

Theodore L. Sendak, Atty. Gen. of Indiana, Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE

Defendants-appellants Patrick M. Dolan and Gregory S. Colter appeal from their convictions of forgery, uttering a forged instrument, attempting to obtain controlled substances by deception, and possession of a controlled substance.

FACTS

On June 18, 1976 Dolan and Colter were approaching the order window at an A & W Root Beer stand in Plymouth, Indiana when they were stopped and questioned by Plymouth Police Officer Thomas Wilson. Prior to stopping Dolan and Colter, Wilson had received a report over his police radio that a young woman had been passing and attempting to pass forged prescriptions at drugstores in some of the small towns near Plymouth. The report stated that the woman had left those drugstores in a gray Pinto automobile which had a license number which began with 71 A, and the report also stated that other people were with her in the car.

Prior to spotting Dolan and Colter Officer Wilson received a report that a woman was attempting to pass a forged prescription at the Revco drugstore in Plymouth. While Wilson and his companion were driving toward the Revco drugstore they spotted a gray Pinto, which had a license number beginning with 71 A, parked at a laundromat which was located a short distance from the Revco drugstore.

The Pinto, which contained two men who were later identified as Dolan and Colter, was driven away from the laundromat and to a nearby A & W Root Beer stand. Wilson followed in his unmarked police car and, after Dolan and Colter had parked the Pinto, had gotten out of it, and had approached the order window at the A & W, Wilson pulled his police car behind the Pinto to block its exit, and he approached Dolan and Colter and asked them for identification. Colter had no identification, but Dolan produced a driver's license and a lease agreement to show that the gray Pinto was properly leased to him.

After searching Dolan and Colter for weapons, Wilson peeked through the closed window on the passenger side of the car and saw a macrame purse. Through the large holes in the purse Wilson could see an empty prescription pad, a syringe, some empty pill vials, and what appeared to be a mascara container. Wilson also observed three empty beer bottles on the floor of the car.

Dolan and Colter were then arrested for public intoxication. Wilson asked Dolan and Colter if the purse belonged to either of them. When they responded in the negative, Wilson seized the purse, locked the doors of the car, and took Dolan and Colter to the police station. While Dolan and Colter were being apprehended another officer captured the young woman who attempted to pass the forged prescription at the Revco drugstore. Her name was Betty Bruington.

At the police station Officer Wilson searched the purse, inventoried its contents, and discovered from the identification contained therein that the purse belonged to Betty Bruington, the girl who had been apprehended while attempting to pass a forged prescription in the Revco drugstore shortly before Dolan and Colter were arrested. Based on the above information Wilson obtained a warrant to search Dolan's car. While searching the Pinto, Wilson seized a .25 caliber automatic pistol from the trunk and a vial of pills containing dexadrine from the glove compartment.

Dolan and Colter were both charged with, tried for, and convicted of the following offenses: forgery, uttering a forged instrument, attempting to obtain controlled substances by deception, and possession of controlled substances.

The issues which have been presented to this court on appeal are as follows:

1. Whether the trial court erred in overruling Dolan's and Colter's respective motions to suppress.

2. Whether the evidence was sufficient to support the convictions.

3. Whether the charges against Dolan should have been dismissed in that the affidavit upon which the information was based contained information which was not true.

4. Whether the trial court erred in giving to the jury the State's tendered Instructions Nos. 1 and 2.

5. Whether the trial court erred in permitting the State to amend its list of witnesses and call a witness who was not listed on the original list and in denying Dolan's motion for a continuance.

6. Whether the trial court erred in restricting Dolan's cross-examination of one of the State's witnesses.

7. Whether the trial court erred in sentencing Dolan and Colter on all counts.

Issue One

Prior to trial both Dolan and Colter filed motions to suppress certain evidence which was obtained, they contend, from an illegal search. It is the defendants' contention that Officer Wilson illegally seized Bruington's purse from Dolan's rented automobile. Therefore, they contend that the subsequent inventory of the contents of the purse and the search warrant which was based in part upon the seizure of the purse and its contents were "fruits of the poisonous tree" which should have been excluded. We disagree.

Where a police officer has reason to believe that criminal activity has occurred or is likely to occur, he is justified in making an investigatory stop of any suspects and in conducting a limited search of the suspect's outer clothing for weapons. See Terry v. Ohio (1969), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 899, and Bryant v. State (1973), 157 Ind.App. 198, 299 N.E.2d 200. Officer Wilson rightfully conducted such a "stop and frisk" in the case at bar.

However, before Officer Wilson could legally arrest Dolan and Colter he had to have probable cause to do so. In our opinion Officer Wilson had probable cause to arrest Dolan and Colter as accessories to uttering a forged instrument, forgery, and attempting to obtain a controlled substance by deception, when, with his knowledge that Dolan's gray Pinto matched the description of the car and license number which the young woman, who had been passing forged prescriptions, was seen entering and with his knowledge that Dolan and Colter were sitting in a gray Pinto near the Revco drugstore where the young woman was attempting to pass another forged prescription, Wilson observed in plain view a woman's macrame purse which contained a blank prescription pad, empty pill vials, and a syringe.

Once Wilson had probable cause to arrest Dolan and Colter he could properly search the automobile which Dolan and Colter had exited immediately prior to Wilson's arrival and to which Dolan and Colter would have returned as soon as they had completed their business at the A & W Root Beer stand. An excellent discussion of the law of search and seizure as it pertains to the search of an automobile subsequent to a lawful arrest is given by Justice Hunter of our Supreme Court in Paxton v. State (1970), 255 Ind. 264, 263 N.E.2d 636, 639-641, as follows:

"As a premise from which to begin, it would seem clear that the mere fact of an arrest, by itself, would not necessarily justify a warrantless search incidental thereto:

'A search or seizure with a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest.' (our emphasis) Trupiano v. United States (1948), 334 U.S. 699, 708, 68 S.Ct. 1229, 1234, 92 L.Ed. 1663, 1671.

Several recent United States Supreme Court cases culminating in Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 have dealt with the permissible scope of a warrantless search incident to an arrest and the principles there enunciated are of interest here. Chimel involved the search of a residence without a warrant following the arrest of a suspect on a charge of burglarizing a coin shop. The Court's holding expressly utilized the reasoning of Trupiano by recognizing that the exigencies of the circumstances often required immediate action on the part of the arresting officer to prevent harm to himself or the destruction of evidence.

Clearly, the reasonableness of a warrantless search incident to an arrest in terms of both its initiation and scope must be determined from the inherent necessities of the circumstances surrounding the arrest.

Although Chimel and those cases preceding it set out guidelines for the permissible scope of a search incident to an arrest, that scope is somewhat extended where the defendant is arrested while in an automobile. An extension of the permissible scope as defined in Chimel may easily be rationalized in such a case on the basis that an additional element of necessity is interjected, namely the mobility of the automobile; given the automobile's mobility and the fact that its occupants are alerted, any seizable goods contained therein may never again be found. Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. Although Carroll is not a 'search incident to an arrest,' case, it is pertinent to our analysis insofar as it recognizes an exception to the search warrant requirements of the Fourth Amendment, and where a search is sought to be made incident to an arrest in a situation with the added exigent circumstances of an automobile's mobility, the rationale of Chimel must be supplemented with that of Carroll.

Thus, due to the exigent circumstances existing where one is arrested while in an automobile, it may be searched entirely without regard to the officer's safety or the possible destruction of evidence, Provided there is probable cause to...

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3 cases
  • Ralston v. State, 1-580A107
    • United States
    • Indiana Appellate Court
    • October 29, 1980
    ... ... Bays v. State, (1959) 240 Ind. 37, 159 N.E.2d 393, cert. denied, (1960) 361 U.S. 972, 80 S.Ct. 605, 4 L.Ed.2d 551; Dolan v. State, (1978) Ind.App., 381 N.E.2d 543, trans. denied ...         Decisions of the Supreme Court of Kansas support our reading of IC 35-41-2-4. There are strong similarities between IC 35-41-2-4 and K.S.A. 21-3205(1) and between the former IC 35-1-29-1 and the former K.S.A. 62-1016 ... ...
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    • July 27, 1981
    ... ... State (1979), Ind., 395 N.E.2d 239; Pinkler v. State (1977), 266 Ind. 467, 364 N.E.2d 126; Dozier v. State (1976), 264 Ind. 329, 343 N.E.2d 783; Kyles v. State (1979), Ind.App., 391 N.E.2d 642; Smithers v. State (1979), Ind.App., 385 N.E.2d 466; Dolan ... ...
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