Duncanson v. State

• Decision Date: 24 June 1987
• Docket Number: No. 45S00-8606-CR-551,45S00-8606-CR-551
• Citation: 509 N.E.2d 182
• Parties: Robert Wendell DUNCANSON, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 182

509 N.E.2d 182

Robert Wendell DUNCANSON, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 45S00-8606-CR-551.

Supreme Court of Indiana.

June 24, 1987.

Michael W. Bosch, Bamber, Stodola & Bosch, Hammond, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant for the crime of Robbery. The jury also found that he was an habitual offender. The trial court therefore enhanced appellant's sentence to a total of forty-five (45) years.

The facts are: On the evening of February 16, 1985, Janet Niksic was working as a cashier at DeLock's Liquor Store in Hammond, Indiana. At approximately 9:30 p.m., Ginelle Willmott entered the store followed a few seconds later by appellant. Willmott came directly to the counter and asked to buy cigarettes. Appellant went over to the beer cooler. Willmott gave Niksic a dollar for the cigarettes. When Niksic opened the cash register to make change, appellant approached the counter with a knife in his hand. Appellant said, "Don't close the drawer. This is a robbery." While appellant was getting the money out of the drawer, Willmott left the store. After taking approximately $80.00 from the drawer, appellant also left.

On the 1st of March 1985, Detective Williams of the Hammond Police Department received a telephone call from the Calumet City Police Department in Illinois. They advised him they had two people under arrest who had information concerning crimes that occurred in Hammond. Detective Williams went to Calumet City and talked to David Mork and Catherine Carter regarding crimes in Hammond, including the robbery of DeLock's Liquor Store. Mork and Carter told Detective Williams that they were at appellant's residence and that appellant told them he and Willmott committed the robbery at DeLock's Liquor Store. He told them Willmott posed as a customer and when the cash register was opened appellant demanded the cash.

After talking to Mork and Carter, Detective Williams went to the police records in an attempt to verify the crimes which were related to him. He found that the records confirmed the crimes. Mork also informed Williams where appellant lived and the type of vehicle he drove. Detective Williams then passed this information to the members of the department investigating the DeLock robbery.

On March 5, 1985, at approximately 2:00 p.m., Corporal Terry Ballentine of the Hammond Police Department, who was privy to the information above setout, was patrolling in the area of 550 Florence Street in Hammond, Indiana. Appellant's residence was located at that address. Corporal Ballentine saw a person sitting in a 1971 green Chrysler directly in front of appellant's residence. Because of his prior information concerning the robbery, Corporal Ballentine "took special notice that there was someone sitting in that car in front of that residence." That person, later identified as Mark Kochevar, got out of the car and went to the front door of appellant's residence. When Kochevar entered, Corporal Ballentine noticed that appellant was in the residence.

At that point, Corporal Ballentine radioed for assistance. When other police units arrived, they contacted the Detective Bureau of the Hammond Police Department for further instructions. At that time, they were told not to make an arrest of appellant. Shortly thereafter, the other assembled units left the scene. Corporal Ballentine then circled the block and on his return he noticed that Kochevar's vehicle had its engine running and that there were no license plates on the car. Corporal Ballentine then parked his squad car where he could observe the vehicle in question.

After a short wait, three people, later identified as appellant, Kochevar and Willmott, came running from the residence. They all jumped into the car and attempted to drive off with appellant driving. However, at this time, Corporal Ballentine stopped the vehicle and arrested the occupants. Kochevar and Willmott were arrested for public intoxication and appellant was arrested on probable cause that he had committed the robbery of the DeLock's Liquor Store.

Upon arriving at the Hammond Police Station, appellant and Willmott were questioned about the alleged robbery. Before they were questioned, detectives interviewed Niksic, the victim of the robbery, who was shown eight photographs of females, one of which was Willmot. However, the victim could not identify Willmott in the photographic lineup. She was then shown a photographic lineup of eight males, one of which was appellant. She was able to identify appellant from the lineup.

After this session with Niksic, the detectives began to question Ginelle Willmot about the robbery. Prior to this questioning, Willmot signed a Miranda waiver form and then proceeded to make a statement implicating appellant and herself in the February 16 robbery of the Delock's Liquor Store. After Willmott had implicated appellant, the detectives began to question appellant about the same robbery. After executing a Miranda waiver form, appellant made an oral statement implicating himself and Willmott in the February robbery of the Delock's Liquor Store.

Appellant claims the trial court erred in denying his pretrial motion to suppress evidence. It is his position that the arrest was illegal; therefore, the statement made by Willmott, her testimony at the trial and appellant's statement made following his arrest are all the products of an illegal arrest and should have been suppressed.

Appellant argues that because the police department told Corporal Ballentine not to arrest appellant at the time he was inside his residence, the trial court should have held and this Court should hold that the arresting officer had no probable cause to arrest appellant. There is nothing in this record to indicate that the decision of the police department not to enter appellant's residence to effect an arrest was a choice based upon lack of probable cause.

However, at a later time, when Corporal Ballentine observed the parties leaving the home in haste in a car which had no license plate, he was faced with an entirely different situation in view of the prior information concerning appellant. A police officer may arrest a person without a warrant when he has probable cause to believe the person has committed a felony. Fisher v. State (1984), Ind., 468 N.E.2d 1365.

Probable cause exists when, at the time of the arrest, the arresting officer has knowledge of facts and circumstances which warrant a person of reasonable caution and prudence to believe that the person to be arrested committed the criminal act in question. Green v. State (1984), Ind., 461 N.E.2d 108. Whether there is probable cause for the officer to make an arrest, depends not upon the knowledge of the arresting officer alone but upon the collective information known to the law enforcement organization as a whole. Suggs v. State (1981), Ind., 428 N.E.2d 226.

When law enforcement officers rely on a tip received from a third source, probable cause may be established by verification of extensive facts which sufficiently demonstrate the reliability of the tip. Randall v. State (1983), Ind., 455 N.E.2d 916. As pointed out above, the Hammond Police Department had received information concerning appellant and Willmott, which information was checked out and found to be accurate according to the details as independently learned by the police department. The trial court did not err in finding that the arresting officer had probable cause to effect the arrest.

In support of his position, appellant cites Taylor v. Alabama (1982), 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314, wherein it was stated that a confession closely following an illegal arrest should be suppressed. To support its opinion, the majority in Taylor cites Dunaway v. New York (1979), 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 and Brown v. Illinois (1975), 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416. In each of these cases, it was held that the confession was obtained by exploiting the illegal arrest and that the affect of the illegal arrest had not been broken by any intervening event of significance.

However, in the case at bar, we have the intervention of the statement of Willmott implicating appellant...