Ferry v. State

• Decision Date: 05 October 1970
• Docket Number: No. 869S191,869S191
• Citation: 262 N.E.2d 523,255 Ind. 27
• Parties: William Bernard FERRY Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 523

262 N.E.2d 523

255 Ind. 27

William Bernard FERRY Appellant, v. STATE of Indiana, Appellee.

No. 869S191.

Supreme Court of Indiana.

Oct. 5, 1970.

Robert R. Riggle, Jeffersonville, for appellant.

Theodore L. Sendak, Atty. Gen., David S. Wedding, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Chief Justice.

This is an appeal brought by the appellant, William Bernard Ferry, from a conviction in the Clark Circuit Court of the crimes of possession of narcotic drugs and possession of narcotic drugs with intent to sell. Said offenses are found at Ind.Ann.Stat. § 10--3538 (1969 Cum.Supp.).

Trial was had before a jury and upon a finding of guilty as charged appellant was sentenced to the Indiana State Prison for not less than two (2) nor more than ten (10) years for possession, and for not less than five (5) nor more than twenty (20) years for possession with intent to sell the drugs in question. A timely motion for new trial was filed by appellant alleging numerous grounds as error in support thereof. Said motion was overruled by the trial court and it is from the overruling of his motion that appellant brings this appeal.

Appellant alleged the following specifications of error in his motion for new trial:

'(1) That the verdict of the jury is contrary to law.

(2) That the verdict of the jury is not sustained by sufficient evidence.

(3) That the court erred in overruling the Defendant's (appellant's) motion for a directed verdict.

(4) That the court erred in overruling the Defendant's motion for suppression or (sic) evidence that was made at the trial.'

In his brief before this court, appellant is arguing specifications (1)--(3) of his motion for new trial and in doing so has grouped and supported them in one argument. Since the question raised by each specification is substantially the same, this opinion will deal with appellant's argument accordingly. Essentially the issue before us involves the following question: Was there probable cause to support the issuance of the search warrant obtained by the police in this case? The resolution of this question is critical to appellant's appeal since all of the incriminating evidence introduced at trial was discovered pursuant to a contested search warrant. Unless probable cause existed, the search warrant would be invalid and the evidence obtained thereunder should have been excluded as demanded by appellant in his motion to suppress.

The evidence most favorable to the State reveals the following events: on November 1, 1968, six police officers went to #19 Yorkshire Apartments at 725 Eastern Boulevard, in Clarksville, Indiana, to conduct a search of the premises pursuant to a warrant issued for that purpose earlier that day. The apartment was occupied by appellant and his wife. The officers upon their arrival at the address knocked on the door and identified themselves. They heard a voice tell them to wait a minute and they did so for approximately 30 to 40 seconds. The officers then decided to wait no longer and commenced to enter the apartment. They were slowed in their progress by appellant's wife, Mrs. Ferry, who was pushing on the door attempting to keep the officers out.

Two of the officers had positioned themselves at the rear of appellant's apartment during the above-described events. When the other officers knocked on the front door of the apartment and identified themselves, the appellant, according to one of the officers in the rear, threw the window blind back, raised the window, opened the screen and laid a shaving case out on the ground. The officer retrieved the case and entered the apartment where the other officers were conducting their search. At the time the first group of police officers made their entrance into the apartment, they observed appellant running toward the bathroom. They pursued him and immediately placed him under arrest.

Among the items discovered during the search of the appellant's apartment were:

(1) a spoon with white powder found in the bathroom and later analyzed to contain cocaine.

(2) a needle and syringe found in the bedroom.

(3) a syringe found behind the couch in the living room.

(4) two syringes found on the kitchen window sill.

(5) a needle, syringe, and a 20 cc. valve found in a dresser drawer.

(6) the shaving case which appellant placed outside his window was found to contain 157 small folded tin foil squares containing powder, and numerous bottles filled with pills. A subsequent laboratory analysis revealed that the tin foil packets contained cocaine, and the bottles contained cocaine, morphine (a derivative of opium), dilaudid, dolophine, and opium alkoloid, believed to be pantopon.

Officer Robert Gutman, a veteran of the Louisville, Kentucky Police Narcotics Squad, testified that the cocaine contents of the shaving case, if all 'bagged' for sale would be worth $2--3,000 in the market. He stated that typical 'bagging' is done in small amounts of powder in small tin foil squares. He further testified that this was exactly the way the packets were wrapped in appellant's shaving case and that in his experience as a narcotics officer this was the only way he had ever seen cocaine flakes packaged for sale. It was his opinion that the packets in appellant's case were packaged for sale.

The affidavit for search warrant leading to the above search was signed by Officer Ronald M. Kemp of the Clarksville Police Department in accordance with the then applicable terms of Ind.Ann.Stat. § 9--602 (1956 Repl.). It reads as follows:

'AFFIDAVIT FOR SEARCH WARRANT

State of Indiana

County of Clark ss:

Ronald M. Kemp, being duly sworn, swears that he has reason to believe and does believe that there are certain narcotic drugs, to-wit: Morphine and codeine, located and concealed in a certain apartment, to-wit: Yorkshire Apartments, apartment 19, 725 Eastern Blvd., Clarksville, Clark County, Indiana, and that said narcotic drugs are unlawfully possessed and used in violation of the laws of the State of Indiana and that the reasons and grounds of affiant's belief that here is probable cause for searching said apartment (sic) are as follows:

That said affiant has information from Sgt. Robert Gutman, Narcotics Bureau, Louisville Police Department, that Bill Ferry and Melvin Haysley were positively identified in Clinton, Iowa, in a drug store in said city and state prior to the time that said drug store was burglarized, (sic) that Bill Ferry was positively identified as being an occupant of a motel in said city and state, that a call was made from Clinton, Iowa, to Bill Ferry's residence at the Yorkshire Apartments, Clarksville, Indiana, that the said Bill Ferry and Melvin Haysley are known users and sellers of narcotic drugs by the Louisville Police Department, that the aforementioned drug store was burlarized (sic) in said Clinton, Iowa, and certain narcotic and dangerous drugs, to-wit: Morphine and Codeine were stolen from said drug store, and that affiant reasoanbly believes that the said Bill Ferry flew from Clinton, Iowa, to Louisville, Kentucky, on the 31st day of October, 1968, that the said Bill Ferry has with him the said narcotic and dangerous drugs, to-wit: Morphine and Codeine at his place of abode aforementioned.

/s/ Ronald M. Kemp

Ronald M. Kemp

Subscribed and sworn to before me this 1st day of November, 1968.

/s/ Michael P. Marra

Justice of the Peace'

Although Officer Kemp appeared before the justice of the peace and gave oral testimony, the record indicates that no information was offered in testimony beyond that already contained in the affidavit. Probable cause therefore was established on the basis of this information and it is appellant's contention that it was based wholly on hearsay. That being so, according to appellant, under Indiana law in existence at that time the affidavit is legally insufficient to support the issuance of the search warrant here challenged.

The leading case in Indiana with regard to the requirements of probable cause for a search warrant is Rohlfing v. State (1949), 227 Ind. 619, 88 N.E.2d 148. This court there held that:

'The search warrant in this case was not sufficient to show probable cause for the reason that the material part of the affidavit showing probable cause was based on hearsay. The judicial determination of probable cause as required herein must be based on facts and not hearsay.' 88 N.E.2d at 150.

The holding in Rohlfing has been recently reaffirmed in a unanimous decision by this court in McCurry v. State (1967), 249 Ind. 191, 231 N.E.2d 227 as follows:

'The doctrines with reference to hearsay as set out in Rohlfing v. State, supra, still remains the law in Indiana * * * We grant that the doctrine that hearsay will not support the issuance of a search warrant (as stated in Rohlfing v. State, supra) is not the rule as announced by the United States Supreme Court. Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.' 231 N.E.2d at 229.

The position of the U.S. Supreme Court regarding hearsay as a basis for a finding of probable cause is best summarized by Mr. Justice Goldberg in the case of Aguilar v. State of Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723:

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was 'credible' or his information 'reliable'. Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate', as the...