Foxall v. State

• Decision Date: 17 July 1973
• Docket Number: No. 1--1072A80,1--1072A80
• Citation: 298 N.E.2d 470,157 Ind.App. 19
• Parties: Robert Rueben FOXALL, Appellant (Defendant Below), v. The STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 470

298 N.E.2d 470

157 Ind.App. 19

Robert Rueben FOXALL, Appellant (Defendant Below), v. The STATE of Indiana, Appellee (Plaintiff Below).

No. 1--1072A80.

Court of Appeals of Indiana, First District.

July 17, 1973.

Gerald E. Surface, Jr., Public Defender for Wayne Superior Court, Richmond, for appellant (defendant below).

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellee (plaintiff below).

LYBROOK, Judge.

Defendant-appellant (Foxall) was tried by court and convicted of Possession of Opium. Prior to trial Foxall's Motion to Suppress Evidence was overruled.

Foxall argues on appeal that (1) there was insufficient probable cause to support the issuance of a warrant to search his apartment for certain stolen property and heroin, (2) the search of the appellant during the execution of the warrant involved such unreasonable force as to deny him due process of law, and (3) therefore, the conviction is based upon evidence obtained from an illegal search and is contrary to law.

The search warrant in question was issued on June 11, 1971, based on an affidavit filed the same day. The affidavit contained information supplied to Officer Ronald Chestnut by one Osborne. In two statements made on June 6 and June 8, 1971, Osborne had informed Chestnut that on May 7, 1971, he and others had stolen certain property and exchanged it with Foxall for $50.00 and 12 packets of white powder. Osborne also stated that when reduced to liquid and injected into his veins, the powder produced a reaction similar to that of heroin.

Chestnut declared Osborne to be a credible person who had, on prior occasions, supplied information that proved to be valid.

Pursuant to the warrant, Foxall's apartment was searched on the evening of June 11, 1971. The officers found a television set fitting the description of one listed in the warrant. Foxall was then placed under arrest for obtaining control over stolen property.

As one officer prepared to search Foxall's person, another officer observed Foxall attempting to place something in his mouth. As the first officer grabbed Foxall's arm, both men lost their balance and fell over a chair. A scuffle ensued between Foxall and the officers and several foil packets of what later proved to be heroin were finally forced from Foxall's mouth.

A plastic 'shoe horn' was inserted into Foxall's mouth to facilitate this extraction. A subsequent physical examination of Foxall revealed three broken ribs, a bruised lower lip, a slight hermorrhaging of one eye and several teeth missing from his denture plate. Foxall testified that the teeth were dislodged upon insertion of the 'shoe horn', but the officers testified that no teeth were found at the scene.

Foxall argues that the search warrant issued June 11, 1971, does not meet the specified standards of probable cause.

Foxall first contends that the affidavit for search warrant is void on its face. The language in question reads, 'James Edward Osborne on the 7th of May, 1971, stated that he, . . .' This is an apparent typographical error or variance. Subsequent uncontroverted testimony revealed that Osborne gave his statements to the police on June 6 and June 8, 1971, and that May 7, 1971 was the date upon which the facts recited in his statement occurred.

An examination of the record discloses that Foxall raises this issue for the first time in this appeal. It was not raised in his Motion to Suppress Evidence. Neither was it argued in his Motion to Correct Errors as required by TR. 59(G), IC 1971, 34--5--1--1.

This court has held that it will not consider arguments which have not been preserved by the Motion to Correct Errors. Clardy v. State (1973), Ind.App., 294 N.E.2d 807; Harris v. State (1972), Ind.App., 289 N.E.2d 344.

Foxall next contends that the time which intervened between Osborne's statement (June 8, 1971) and the issuance of the search warrant based upon facts given in the statement (June 11, 1971) was unreasonable. Here again, Foxall raises an issue for the first time on appeal. Not being preserved in the Motion to Correct Errors, this argument too, must fail.

Foxall next maintains that the affidavit leading to the issuance of the search warrant did not provide a sufficient basis for a finding of probable cause. Specifically, he argues that the affidavit failed to set forth any of the underlying circumstances on which the informant based his conclusions.

Foxall relies on Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 in which a conviction for illegal possession of heroin was reversed. The affidavit for search warrant was based upon hearsay information provided by an informer. The relevant portion of the affidavit is set forth at page 109, 84 S.Ct. at page 1511, as follows:

'Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.'

The court held that this allegation, unsupported by any recitation of underlying circumstances from which the informant drew his conclusion, did not provide a sufficient basis for a finding of probable cause.

The affidavit in the case at bar is not defective in this respect. It recites more than a mere conclusion of an informer that Foxall was in possession of heroin. Rather, it sets forth the details of a transaction between the informant and Foxall in which stolen property was exchanged for money and white powder which, when reduced to liquid and injected, produced the same reaction as heroin.

Foxall argues that there are not sufficient underlying circumstances shown upon which Osborne based his conclusion that the white powder was heroin. He questions the informant's ability to identify the substance as heroin. He also questions whether the affidavit specifically reveals that Osborne received the money and white powder in exchange for the stolen goods. We do not find these arguments convincing. The U.S. Supreme Court, in applying the Aguilar decision in the later case of United States v. Ventresca (1965), 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, commented as follows:

'These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.

'Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.'

Moreover, in Indiana it has been held that heroin may be identified by a user's testimony describing the reaction produced by reducing and injecting a white powder into his person. Pettit v. State (1972), Ind., 281 N.E.2d 807.

We therefore conclude that the affidavit set forth sufficient underlying circumstances to support a finding of probable cause under Aguilar, supra.

Foxall next contends that the affidavit fails to meet the specified standards for credible hearsay as prescribed in IC 1971, 35--1--6--2; Ind.Ann.Stat. § 9--602 (Burns 1972 Supp.):

'No warrant for search or arrest shall be issued until there is filed with the justice of the peace, judge of any city court or magistrate's court or the judge of any court of record, an affidavit, particularly describing the house or place to be searched and the things to be searched for, or particularly describing the person to be arrested, and alleging substantially the offense in relation thereto, and that the affiant believes and has good cause to believe that such things as are to be searched for are there concealed, or that the person to be arrested committed said offense, and setting forth the facts then in knowledge of the affiant or information based on credible hearsay, constituting the probable cause. When based on credible hearsay, the affidavit shall contain reliable information supplied to the affiant by a credible person, named or unnamed, and it shall contain the following:

'(a) Affirmative allegations that the credible person spoke with personal knowledge of the matters contained therein.

'(b) The facts within the personal knowledge of the credible person.

'(c) The facts within the affiant's knowledge as to the credibility of the credible person.'

Foxall argues that the affidavit fails to present independent facts upon which the affiant determined the credibility of the informer. The affidavit contains the following statement as to the informer's credibility:

'That this affiant knows that the said James Edward Osborne is a credible person as he has, on prior occasions, given this affiant information that proved to be valid.' (Our emphasis.)

The question presented is whether the above statement is sufficient to satisfy the statutory requirement demanding facts 'within the affiant's knowledge as to the credibility of the credible person.'

The Aguilar case held that where the affidavit is based on hearsay information provided by an informant, it must contain some of the underlying circumstances from which the officer concluded that the informant was 'credible' or his information 'reliable'. To exemplify the holding, the court footnotes an affidavit which was sustained in Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. In that affidavit, the credibility of the informant was established...