Elks Club v. State

• Decision Date: 17 December 1980
• Docket Number: No. 2-978-A-314,2-978-A-314
• Citation: 413 N.E.2d 660
• Parties: Page 660 413 N.E.2d 660 B. P. O. E. # 576, ELKS CLUB a/k/a Board of Trustees of B. P. O. E., Noblesville Chapter, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). Court of Appeals of Indiana, Second District
• Court: Indiana Appellate Court

Page 660

413 N.E.2d 660

B. P. O. E. # 576, ELKS CLUB a/k/a Board of Trustees of B.

P. O. E., Noblesville Chapter, Appellant (Defendant Below) v STATE of Indiana, Appellee (Plaintiff Below).

No. 2-978-A-314.

Court of Appeals of Indiana, Second District.

Dec. 17, 1980.

David M. Adams, Castor, Richards, Adams & Boje, Noblesville, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

The Benevolent and Protective Order of Elks, No. 576 (Elks) was convicted, after a bench trial, of possession of slot machines as per I.C. 35-25-4-1(a) and was fined $500.

The Elks Club appeals that conviction and presents two issues for our review:

1) Whether the court erred in permitting photographs, taken subsequent to a defective search warrant, to be introduced into evidence, and

2) Whether the evidence is sufficient to establish that the apparatuses were operable, could have money inserted therein or that a potential user could obtain anything of value.

We affirm.

At approximately 3:00 a.m. on November 21, 1976, burglar alarm # 5 was activated at the Noblesville Police Department. That particular alarm was for the Elks Club and could be deactivated only by a key. Police officers Lynn Austin and Ralph Givens were dispatched to the Club to check for prowlers. Austin went to the east end of the building while Givens covered the west end. Givens testified that he saw lights in a downstairs room and also observed through a window several metal objects with lever-type arms. Givens noticed an open door on the west side of the building and summoned Officer Austin by walkie-talkie. The two then entered the building through the open door and proceeded to search the entire building.

I.

Subsequent to the initial search of the Elks Club by Officers Austin and Givens, a search warrant was issued and certain objects were seized and photographed. That search warrant was later deemed defective and a motion to suppress the evidence seized was granted. Accordingly, at trial the court excluded the evidence seized pursuant to the search warrant as well as Exhibits 7 and 11 which were photographs taken after the issuance of that search warrant.

The Elks Club now argues that certain other photographs, namely Exhibits 2, 4, 5, 6, and 14, and eyewitness testimony about the objects photographed were erroneously admitted because such evidence relates to the subject matter of the warrant and was tainted by the defectiveness of that warrant. It is well settled that evidence obtained as a result of an illegal arrest, search or seizure is tainted and inadmissible unless the government can show that the evidence was obtained from an independent source. Pirtle v. State (1975),263 Ind. 16, 323 N.E.2d 634.

In the case at bar, Officers Austin and Givens testified that they were dispatched to the scene to investigate a possible burglary. A light emanating from the basement prompted the officers to look into the windows and enter the building. Inside they noticed the metal objects in dispute here. Under the so-called "plain view" doctrine, evidence obtained by a warrantless entry is admissible if the officer 1) is rightfully positioned and 2) discovers the evidence in plain view inadvertently. Ludlow v. State (1974),262 Ind. 266, 314 N.E.2d 750, 753; Alcorn v. State (1970),255 Ind. 491, 265 N.E.2d 413. In searching for an intruder, the officers were acting reasonably and within the scope of their duties. Officer Austin testified that they entered the building "to search for possibly a burglar, which is what we do when we find any door or window broken in any type of building." Both officers recounted their room-by-room search of the premises to check for anyone hiding. They observed the metal objects sitting on the tables in various rooms. We believe these circumstances fall squarely within the plain view doctrine. The officers were rightfully on the premises; the Elks Club was within the jurisdiction of the Noblesville Police Department and a part of the Department's routine patrol. The officers went to the Elks Club to check the building security since the alarm activated. They had no prior knowledge of the presence of the machines and discovered them inadvertently while carrying out their normal investigatory routine. Accordingly, no search warrant was necessary and the trial court did not err in admitting the officers' eyewitness testimony.

The Elks Club also disputes the introduction into evidence of the photographs. Officer Givens testified that the photographs of the metal objects, denominated Exhibits 2, 4, and 5, were taken in his presence between 3:30 and 4:00 a.m., before the search warrant was obtained. Officer Givens also testified that Exhibit 14, a photograph, was taken during the same period of time. The Elks Club argues that the photographs must be excluded as a product of a defective warrant because the film negative strip was introduced which indicated that Exhibits 2, 4, 5 and 14 were photographed after Exhibit 11. Exhibit 11 was excluded on the grounds that it was taken in the daylight hours after the issuance of the defective warrant.

A trial court is vested with broad discretion in determining admissibility of evidence and its determination will be reversed on appeal only where a ruling is contrary to the logic and effect of the facts and circumstances before the court. Misenheimer v. State (1978),268 Ind. 274, 374 N.E.2d 523; State v. Moore (3d Dist. 1979) Ind.App., 391 N.E.2d 665. In the instant case, the trial court's determination to admit the photographs was based upon a consideration of contradictory evidence. The negative strip indicated that the photos in question were taken subsequent to Exhibit 11 and yet Officer Givens testified that those photos were taken in his presence prior to the issuance of the defective warrant. When faced with contradictory versions of the facts, it is the role of the trial court, not the appellate tribunal, to weigh the evidence, judge the credibility of the sources, and make a ruling. While we might have ruled otherwise under the circumstances of this case, we cannot say that the trial court abused its discretion by admitting the photographs.

II.

The Elks Club next argues that the evidence was insufficient to establish that the metal objects observed and photographed by the officers were slot machines. A slot machine is defined by I.C. 35-25-4-2 as follows:

" 'Slot machine' defined.-Any machine, apparatus or device is a slot machine or device within the provisions of this act (35-25-4-1 35-25-4-3) if it is one that is adapted, or may readily be converted into one that is adapted, for use in such a way that, as a result of the insertion of any piece of money or coin or other object such machine or device is caused to operate or may be operated, and by reason of any element of chance or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, credit, allowance or thing of value, or any check, slug, token or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance or thing of value, or which may be given in trade, or the user may secure additional chances or rights to use such machine, apparatus or device, even though it may, in addition to any element of chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise, indication of weight, entertainment or other thing of value." (Burns Code Ed. 1975) ¹

Specifically, the Elks Club contends that the State failed to show that money could be inserted into the device, that it operated, and that an...