Francis v. State
| Decision Date | 07 October 1974 |
| Docket Number | No. 1--873A156,1--873A156 |
| Citation | 161 Ind.App. 371,316 N.E.2d 416 |
| Parties | Henry FRANCIS, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). . Dept. 3, 1974. Rehearing Denied |
| Court | Indiana Appellate Court |
Olsen & Niederhaus, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., Glenn A. Grampp, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Francis appeals from a conviction of possession of narcotic drugs, to-wit: opium, raising the following issues for review:
(1) Whether the drugs seized at the time of his arrest are admissible;
(2) Whether testimony concerning a gun seized from defendant at the time of his arrest is admissible;
(3) Whether the trial court erred in overruling defendant's motion for mistrial; and
(4) Whether the trial court erred in instructing the jury as to the penalty.
For several days prior to April 13, 1972, Officer Brinkley of the Evansville Police Department had been investigating tips received from reliable informants notifying him that Francis was engaged in selling drugs. On the morning of April 13, 1972, Brinkley was further advised by the same informants that Francis was carrying drugs and had a firearm on his person. Brinkley then initiated a stake-out of Francis' residence and set into motion the procedures necessary to obtain a search warrant. While returning to the police station to complete the arrangements for the warrant, Brinkley received a call over the police radio from an officer remaining at the stake-out motifying him that Francis had left his residence and was driving north on Putnam Street. Brinkley then turned around and started back to the area of the stake-out in attempt to intercept Francis. Brinkley advised the officers at the stake-out that on his return he wanted to stop Francis' car. At that time, Officer Trible, also of the Evansville Police Department, notified Brinkley that he had overheard the broadcasts concerning Francis and was driving behind Francis' car. Brinkley ordered Trible to stop Francis. After Trible engaged his siren and flashing red light Francis pulled into a nearby service station. Trible approached Francis and asked him for some identification. Trible then detained Francis for one or two minutes until Officer Brinkley arrived. Brinkley conducted a pat down search of Francis. When this search revealed a revolver stuck in the waistband of Francis' trousers, Brinkley formally notified Francis that he was under arrest and proceeded to conduct a more extensive search of his person. This search disclosed several capsules and a paper sack containing opium. It was for the possession of these narcotic drugs that Francis was convicted.
Initially Francis challenges the admissibility of the drugs seized from him at the time of his arrest. He maintains that his arrest was unlawful in that the arresting officer, Trible, did not have probable cause to effectuate a warrantless arrest, thereby making the drugs seized inadmissible.
The constitutional validity of a warrantless arrest depends upon whether at the moment the arrest was made, the arresting officer had probable cause to make it--whether at that moment, the facts and circumstances within his knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrestee had committed or was committing an offense. Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.
Francis argues that an order from a fellow officer is not sufficient to justify a warrantless arrest. He maintains that to justify his warrantless arrest, the record must reveal that the arresting officer personally had in his mind knowledge sufficient to establish probable cause. We do not agree.
In our opinion, the existence of probable cause for an arrest should be determined on the basis of the collective information known to the law enforcement organization as a whole, and not solely on the personal knowledge of the arresting officer. The police force is considered as a unit an where there is a police-channel communication to the arresting officer and he acts in good faith thereon, the arrest is based on probable cause when such knowledge and information exist within the department. Wisconsin v. Mabra (1974), 61 Wis.2d 613, 213 N.W.2d 545; Whiteley v. Warden (1971), 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; Manson v. State (1967), 249 Ind. 53, 229 N.E.2d 801. Nevertheless, 'an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.' Whiteley v. Warden, supra. Thus, if it is to serve as justification for a warrantless arrest, the information within the police department must still be 'reasonably trustworthy' and meet the tests of Beck v. Ohio, supra, and Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.
The information concerning Francis known by the Evansville Police Department consisted mainly of Officer Brinkley's personal knowledge and informants' tips. The record reveals that Francis had previously acted as an informant for the Narcotic Division of the Evansville Police Department and during that time, he admitted to Brinkley that he occasionally used narcotic drugs. Additionally, Brinkley was aware of Francis' prior record of misdemeanor and felony convictions. Through various informants Brinkley learned that Francis was actively engaged in selling narcotic drugs and that on the morning of April 13, 1972, he was carrying drugs and a firearm on his person. These tips were received from persons who had on several previous occasions supplied reliable and credible information. The tips were based on actual observations of drug purchases from Francis and observations of Francis' gun. In our opinion the above constitute sufficient facts and circumstances to warrant a prudent man in believing that on the morning of April 13, 1972, Francis had committed or was committing an offense. His warrantless arrest was lawful and the subsequent search of Francis was constitutionally permissible. Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Accordingly, we find no error under appellant's first issue.
Secondly, appellant challenges the admissibility of testimony concerning the gun seized from him at the time of his arrest. Francis maintains that this testimony tended to create an impression in the minds of the jurors that he had committed a crime other than the one charged. He argues that it is a fundamental rule that evidence which proves or tends to prove that the accused is guilty of the commission of crimes other than those charged is inadmissible because of it's inflammatory and prejudicial effects. Francis therefore suggests that the admission of this testimony over his objections is grounds for a new trial. We do not agree.
Although we accept appellant's general statement on the admissibility of evidence of other crimes, 1 his arguments under this issue fail for two reasons. First, the record before us clearly indicates that appellant was being tried on two counts: (1) illegal possession of narcotic drugs, and (2) carrying a pistol without a license. Although the State did dismiss the second of these counts at the close of its evidence, the charge was still pending against Francis when the testimony concerning the revolver was elicited. Accordingly, it was proper to admit such testimony. Secondly, it is our opinion that even if Francis had not been charged with illegal possession of a firearm, testimony concerning the revolver is admissible as part of the res gestate. In commenting on the res gestae exception to the rule concerning admissibility of evidence of other crimes, this court in Clinton v. State (1974), Ind.App., 305 N.E.2d 897, stated:
'Appellants argue that the introduction of this testimony is erroneous since it tends to prove commission of another crime, that being possession of dangerous drugs, to-wit: Amphetamines. However, this contention must fail since this evidence is admissible as part of the res gestae. Appellants gained possession of the drug substance during commission of the crime charged. Hence, the following general rule expressed by our Supreme Court in Kiefer v. State (1960), 241 Ind. 176, 169 N.E.2d 723, is applicable:
(Footnote omitted.) 305 N.E.2d at 899.
In our opinion, the general rule of Kiefer is applicable to the testimony concerning the revolver. We find no error in admitting such testimony.
During the presentation of the State's evidence, Officer Brinkley, having previously testified, was recalled to the stand for omitted questions. The following ensued:
'Q. Officer Brinkley, you are still under oath. In your search of this defendant did you find anything else on him, any narcotics paraphernalia?
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Harrison v. State
...would lead a reasonably prudent man to believe the arrestee had committed or was committing an offense. Francis v. State, (1974) 161 Ind.App. 371, 316 N.E.2d 416. Harrison's two-prong attack on the evidence in the case at bar challenges both the sufficiency of probable cause and the existen......
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...not reveal that the arresting officer personally had in his mind knowledge sufficient to establish probable cause. Francis v. State, (1974) 161 Ind.App. 371, 316 N.E.2d 416. "In Francis, We said, at " 'In our opinion, the existence of probable cause for an arrest should be determined on the......
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