Griffin v. State

• Decision Date: 15 February 1978
• Docket Number: No. 2-176A35,2-176A35
• Citation: 372 N.E.2d 497,175 Ind.App. 469
• Parties: Henry L. GRIFFIN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 497

372 N.E.2d 497

175 Ind.App. 469

Henry L. GRIFFIN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2-176A35.

Court of Appeals of Indiana, Third District.

Feb. 15, 1978.

Joseph P. Allegretti, Hammond, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Joseph J. Reiswerg, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

Henry L. Griffin was convicted, after a trial by jury, of "obtaining control over stolen property knowing the property to be stolen by another and intending to deprive the owner of its use." IC 1971, 35-17-5-3(1)(f). The trial court sentenced Griffin to an indeterminate sentence of not less than one (1) nor more than ten (10) years. We find no merit in the several contentions that Griffin urges require reversal. We affirm.

The record, viewed in the light most favorable to the state, discloses the following. At approximately 4:00 a. m. on May 29, 1975 Officer Jerry Toler of the Highland Police Department noticed Griffin driving an Indiana licensed vehicle that had no safety inspection sticker. He followed the vehicle for a short time before turning on his red light. Griffin pulled the car off the highway, got out and met Toler, who had exited his vehicle, at the front of the police car. Toler asked Griffin for his driver's license and the car's registration. Griffin stated that he had an Illinois driver's license but that it had been stolen, along with his wallet, in Chicago the previous day. Toler then asked for Griffin's name and date of birth so he could confirm that Griffin was licensed to drive in Illinois. Griffin appeared to have difficulty in giving the correct spelling of his name and his date of birth. At this point Toler ran a computer check on the license plate of the car Griffin was driving. The plate was registered to a 1969 Buick four-door sedan owned by one Roberto Ruliso in East Chicago, Indiana. The car Griffin was driving was a 1968 Buick Riviera. With this information Toler determined that Griffin had to be placed in custody for driving without an operator's license and for false registration of a vehicle.

Toler then called a tow truck and began to examine the interior of the vehicle. He testified that it was standard procedure to inventory a vehicle prior to its being towed to the police station. He observed, in plain view, a "two station grinder" in the back seat of the car in addition to numerous items of clothing. He asked Griffin who owned the grinder. Griffin stated that he was the owner and that he had purchased it the previous day in Chicago. Toler then searched under the clothes in the back seat and found a gold tool box with tools, a camera, a radio and additional tools not in the tool box. Toler testified that at the time of the search Griffin was in the custody of Officer Hubbard who had come to the scene as "backup" for Toler. He further stated that Griffin was "very courteous" and that he did not feel threatened by Griffin.

The car was towed to the station where the items that Toler had inventoried were removed from the car. In addition, Toler opened the trunk of the car and found more tools, grinders, two tool boxes, a camera and several radios. All items removed from the vehicle were tagged and held by the police.

On May 30th at approximately 8:45 p. m. Roger Robb noticed that many of his tools, including a gold tool box and a grinder, were missing. He notified the police that a theft had occurred. He stated that he had last seen the missing tools at 1:00 a. m. May 29th and that they were valued at $300.00. Robb was called to the police station to determine whether he could identify his missing tools among those being held. He did so and, after photographs were taken, the tools were returned to him. After the police determined that the tools identified by Robb were the ones taken from Griffin's car, the information charging Griffin with theft was filed.

I. Claim of Unlawful Search

It is argued that Officer Toler unlawfully searched the car Griffin was driving without probable cause and without the exigent circumstances necessary to justify a warrantless search. We agree that Griffin's arrest for a traffic offense would not create probable cause for an extended search of the vehicle. Paxton v. State (1970), 255 Ind. 264, 263 N.E.2d 636. It is also clear that a warrantless search was not required to assure the arresting officer's safety. Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Nonetheless, we find no constitutional infirmity in Toler's search of the vehicle as his purpose was simply to inventory valuables in a vehicle that was lawfully impounded and about to be towed to the police station for storage. South Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000.

The evidence presented at the hearing on the motion to suppress indicates that Toler was clearly warranted in impounding the car Griffin was driving. IC 1971, 9-9-5-5 (Burns Code Ed.) states:

"Motor vehicles without number plates Taken into custody. Any representative of the secretary of state, or any state police officer or any officer or member of any municipal police department who may discover any motor vehicle or motor bicycle without the proper registration and license plates attached, shall take such motor vehicle or motor bicycle into his custody and may cause such motor vehicle or motor bicycle to be taken to and stored in a suitable place until the legal owner thereof can be found or the proper registration and license plates have been procured."

Once Toler determined that the license plates were not issued to the car Griffin was driving, he was authorized to seize the vehicle. Further, the car was to remain in police custody for an indefinite period of time. Until Griffin showed that the vehicle was properly in his possession it was possible that the vehicle was stolen. If so, Toler could not know how long it would take to identify the car's owner. On these facts, Toler testified that it was standard police procedure to inventory the vehicle prior to its being towed to the police station. ¹

In Opperman, supra, the defendant's vehicle was towed after it remained parked in a restricted zone for several hours. From outside the car the police observed items of personal property on the dashboard, back seat, and back floorboard of the car. Pursuant to police procedures these items were removed and inventoried. In addition, the police searched the unlocked glove compartment. There a plastic bag containing marijuana was found and the defendant was charged with unlawful possession. In approving the search of the glove compartment the Court stated:

"The Vermillion police were indisputably engaged in a caretaking search of a lawfully impounded automobile. Cf. United States v. Lawson, 487 F.2d 468, 471 (C.A. 8, 1973). The inventory was conducted only after the car had been impounded for multiple parking violations. The owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself was prompted by the presence in plain view of a number of valuables inside the car. As in Cady, there is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.

On this record we conclude that in following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not 'unreasonable' under the Fourth Amendment." (footnote omitted) 428 U.S. 364, 375-6, 96 S.Ct. 3092, 3099-3100, 49 L.Ed.2d 1000, 1009.

In the present case, it is equally clear that the seizure and inventory of the vehicle was prompted by Griffin's arrest and the necessity for determining the right to possession of the vehicle. There is nothing to suggest that the seizure of the vehicle was a mere pretext for the ensuing search. Indeed, Toler did not determine that the plates displayed were properly issued to another vehicle, thereby necessitating the seizure under IC 1971, 9-9-5-5 (Burns Code Ed.), until after he had stopped and questioned Griffin.

Further, the inventory search was routine. Where the search is routine it is limited by its purpose, i. e., protecting the owner's property and avoiding the occasional danger that may arise in impounding an unsearched vehicle. In addition, the necessity of procuring a warrant is greatly diminished because the inventory is not conducted to uncover crime; there is "no significant danger of hindsight justification" for the search; and there is no discretion in the arresting officer as to whether a search is required. ² Opperman, supra, 428 U.S. 364, 383, 96 S.Ct. 3092, 3103-4, 40 L.Ed.2d 1000, 1013-14 (concurring opinion).

On these facts, substantially similar to those in Opperman, ³ we conclude that Toler's routine inventory search of the vehicle was reasonable and therefore consistent with the constitutional commands against unreasonable searches and seizures.

II. Admission of Exhibits Into Evidence

The state introduced into evidence two photographs of the grinder, tool box and tools that had been taken from Robb's garage. Griffin objected to the introduction of these exhibits upon the basis that a proper foundation had not been made to establish their relevancy. The gist of his argument is that Officer Toler, who removed the tools from Griffin's vehicle, was not present when Officer Mitchell took the photographs and there was no basis for saying the tools photographed were the same tools removed by Toler. However, immediately before the photos were offered Officer Mitchell testified without objection that the tools in the photograph were those taken from Griffin's car. Accordingly, the exhibits were properly introduced.

III. Sufficiency of Evidence

Griffin...