Funk v. State, 880S334

Decision Date18 November 1981
Docket NumberNo. 880S334,880S334
Citation427 N.E.2d 1081
PartiesAlva Leslie FUNK, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Lopp, Lopp & Grampp, Glenn A. Grampp, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Judge.

Appellant was charged with the crime of theft to which was added an habitual offender charge. Appellant was found guilty of theft by jury in a bifurcated proceeding. On the habitual criminal charge there was a mistrial, a new jury was chosen and the appellant found to be an habitual criminal. He was first sentenced to two (2) years on the theft charge, then that sentence was increased by an additional thirty (30) years by reason of his being found to be an habitual criminal.

The record shows the following facts. In the late evening or early morning hours of May 15 or 16, 1979, John Trout's jewelry store in Warrick County was burglarized. Goods valued in excess of twenty thousand dollars ($20,000) were taken. A witness stated she had seen a strange car parked near the building on the night before and gave police officers a partial license number and a description of the car.

Upon checking the license number and the description of the car, the police were able to discern that an automobile of that description with that license number was owned by appellant and his wife. Through contact with the Lafayette police department they were able to learn that appellant had a criminal record and that there was an outstanding warrant for his arrest from Fountain County.

Shortly before midnight on May 24, appellant was reported to be in an Evansville motel room with some other men. Police set up surveillance of the room. During the morning hours one of appellant's companions was seen taking some jewelry from under the front seat or the dashboard of the car. At about 1:00 P.M., it became apparent to the officers that appellant and his companions were preparing to leave the motel. As they entered the parking lot the arrest was made of appellant and his companions. A search conducted at that time produced some jewelry and a handgun from the appellant. A search warrant was then obtained for the automobile and the resulting search produced a great deal of jewelry along with burglary tools. John Trout, the owner of the burglarized store, identified the jewelry as that taken from his place of business.

Appellant claims the trial court erred in granting John Trout's Motion for Disposition of Property Held as Evidence. This motion was granted at a court proceeding held June 19, 1979. The items belonging to Trout which were recovered from the search of appellant's person and the car were photographed and returned to Trout. Sometime in September, appellant's counsel inspected the photographs and a few items that had been left with the police. On December 6, appellant's counsel filed a Motion for Production of Exhibits or in the Alternative to Dismiss. This motion was denied.

It is appellant's contention he was not served notice as required by Indiana Criminal Rule 18. We find no Indiana case directly in point construing Criminal Rule 18. However, we do find guidance in Jurdzy v. Liptak, (1961) 243 Ind. 1, 180 N.E.2d 530. In that case a default judgment was won by Jurdzy against Liptak, who then moved to set aside the judgment. No copy of the motion was provided to Jurdzy, and he opposed the granting of the motion on grounds other than failure of Liptak to provide Jurdzy's counsel with a copy of the motion. The trial court then overruled Jurdzy's objection to having the judgment set aside and granted Liptak's motion. On appeal this Court refused to consider the argument that failure to serve Jurdzy's counsel with a copy of the motion was grounds for reversal.

At that time, the equivalent of Criminal Rule 18 was Indiana Supreme Court Rule 1-16, which also required copies of all pleadings and motions to be served on the adversary party's counsel. This Court held: "Compliance (with the rule) also may be waived by an appearance in opposition to such motion or pleading without making any specific objection that no copy was served." Id. at 5, 180 N.E.2d at 531. The Court further noted: "(I)t is incumbent on the party who complains of a failure to comply with the rule to call it to the court's attention at the first opportunity." Id. at 6, 180 N.E.2d at 532.

In the case at bar the principle enunciated above is applicable and forecloses appellant from gaining a reversal of the conviction on these grounds. The record indicates appellant was present and represented by counsel at the June 19 proceeding at which Trout's motion was filed, and no objection was made to the motion. We hold appellant's failure to object to the State's noncompliance with Criminal Rule 18 constitutes a waiver of the subsequent objection. We hold the trial court did not err in denying appellant's motion to produce or dismiss, nor did the trial court err in overruling appellant's objections to the introduction of the photographs into evidence.

Appellant claims the trial court erred in denying his Motion to Suppress Evidence recovered from appellant's car and person, and also the trial court erred in admitting the exhibits so obtained into evidence. It is appellant's claim these items were inadmissible because they were derived from an illegal arrest. He claims the arrest was illegal because it was made without a warrant. The cases cited by appellant hold that an arrest warrant is a condition precedent to a lawful arrest unless "exigent circumstances" exist to make the procuring of a warrant impracticable. He cites Pawloski v. State, (1978) 269 Ind. 350, 380 N.E.2d 1230; Banks v. State, (1976) 265 Ind. 71, 351 N.E.2d 4; Finch v. State, (1975) 264 Ind. 48, 338 N.E.2d 629.

Since the cases cited by the appellant, this Court has decided a number of other cases in which the exigent circumstance requirement has been abrogated. Now in Indiana a police officer may make an arrest without a warrant so long as he has reasonable and probable cause to believe the person has committed a felony. Battle v. State, (1981) Ind., 415 N.E.2d 39; Morris v. State, (1980) Ind., 399 N.E.2d 740; Smith v. State, (1979) Ind.App., 392 N.E.2d 503; Gardner v. State, (1979) Ind., 388 N.E.2d 513.

The United States Supreme Court has held warrantless arrests need not be accompanied by the presence of exigent circumstances in order to pass constitutional muster under the Fourth Amendment. See, United States v. Watson, (1976) 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598. In that case, the Supreme Court observed that the imposition of a requirement of more than probable cause for warrantless arrests would "encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like." Id. at 423-24, 96 S.Ct. at 828, 46 L.Ed.2d at 609.

We thus must determine whether or not there was probable cause for the arrest of appellant. This Court has held that probable cause exists when at the time of the arrest the officer has knowledge of facts and circumstances which would warrant a man of reasonable caution to believe the defendant has committed the criminal act in question. Battle, supra; Taylor v. State, (1980) Ind., 406 N.E.2d 247; Benton v. State, (1980) Ind., 401 N.E.2d 697; Cato v. State, (1979) Ind., 396 N.E.2d 119; Crane v. State, (1978) 269 Ind. 299, 380 N.E.2d 89.

In the case at bar police had received a tip from a citizen that appellant's car was seen in the vicinity of the crime near the time of the commission. Information from other police agencies indicated appellant was a known burglar. Additionally, during the surveillance of appellant's motel room a companion was seen retrieving jewelry from a place of concealment in appellant's car. This combination of circumstances was evidence to support the trial court's finding that the arresting officers had probable cause to believe appellant had committed the burglary. We thus hold the trial court did not err in finding there was probable cause for the arrest; therefore, the trial court did not err in denying appellant's Motion to Suppress Evidence nor did the trial court err in admitting the exhibits into evidence.

Appellant also argues his arrest was timed so that it could be used to justify the warrantless search of his person, thus the evidence discovered in that search is tainted and should not be admitted. Appellant relies on three cases: Amador-Gonzales v. United States (5th Cir. 1968) 391 F.2d 308; United States v. Harris (6th Cir. 1963) 321 F.2d 739; and McKnight v. United States, (D.C. Cir. 1960) 183 F.2d 977.

In Amador-Gonzales, supra, the arrest of a person for a traffic violation was used as a pretext to search his car. In Harris, supra, and McKnight, supra, arrests were made inside the arrestees' home so that the entire house could be searched without a warrant. In all three cases searches made of the car or the houses produced valuable physical evidence to be used against the defendants. However, the evidence was declared inadmissible because it was obtained by using an arrest as a pretext for a warrantless search. We see no parallel in those cases with the case at bar.

In the instant case it had become apparent to the police officers appellant and his companions were about to leave the scene in an automobile. They further had probable cause to believe that at least some of the missing jewelry was in appellant's possession. There is evidence from which the trial court could logically find the officers were in a position of having to make the arrest at that moment or of losing the opportunity of making an arrest at all. We find no error in the trial court's ruling in this regard.

Appellant next claims the Indiana habitual offender statute, I.C. 35-50-2-8 (Burns' 1979), is...

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