Hall v. State, 1069S251

• Citation: 266 N.E.2d 16,255 Ind. 606
• Decision Date: 01 February 1971
• Docket Number: No. 1069S251,1069S251
• Parties: Dode Merl HALL, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 16

266 N.E.2d 16

255 Ind. 606

Dode Merl HALL, Appellant, v. STATE of Indiana, Appellee.

No. 1069S251.

Supreme Court of Indiana.

Feb. 1, 1971.

Paul B. McNellis, Kenneth M. Waterman, Fort Wayne, for appellant.

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

GIVAN, Judge.

Appellant was charged by affidavit with the crime of first degree burglary. Trial by jury resulted in a conviction and a sentence of not less than ten nor more than twenty years in the Indiana State Reformatory.

The record in this case discloses the following:

Sometime between October 4, 1968, and October 6, 1968, while the occupants were away for the weekend, a residence was burglarized in Ft. Wayne, Indiana, and a number of personal items identified in evidence were taken from the residence.

On October 21, 1968, the Ft. Wayne police were notified by the Vincennes, Indiana, police that one Hugh McLemore had been stopped by one of their officers for a traffic violation. A passenger in McLemore's car started firing at the police officer. Upon arrest of the subjects the car was searched and two weapons and a can of chemical Mace, which had been taken in the Ft. Wayne burglary, were recovered. The arrested subjects gave their address as 2417 Allegheny Avenue, Ft. Wayne, Indiana. Ft. Wayne police learned that this address was also the home of the appellant, Dode Merl Hall. They immediately placed the residents at 2417 Allegheny in Ft. Wayne under surveillance. A search warrant was obtained. The appellant, his wife and children and another suspect named Snow were apprehended shortly after leaving the house, shown the search warrant and returned to the house where a systematic search was conducted. During the search several additional articles were recovered which had been taken in the earlier burglary. At the time of the arrest appellant was fully apprized of his constitutional rights. Police officers testified that they also advised the appellant that his wife was a prime suspect in the burglary for which the appellant had been arrested and other burglaries in which he was also a suspect. However, the wife, after being questioned, was permitted to remain at large with her children, but did return to the jail on several different occasions to talk with her husband.

The introduction into evidence of appellant's confession requires a reversal of this case for reasons which will be stated subsequently in this opinion. However, because a retrial in this case is probable, we will proceed to deal with other questions which are raised in this appeal and will re-occur upon retrial.

Appellant first claims the trial court erred in admitting into evidence State's Exhibit C, which was a file marked copy of an affidavit for a search warrant issued by the Allen Circuit Court. It is appellant's claim that the affidavit for search warrant did not give rise to a 'probable cause belief' that the specific property described would be found in the place to be searched. The affidavit stated that the Vincennes officers had pursuant to a valid arrest recovered goods taken in the Ft. Wayne burglary and had obtained the address of the place to be searched from the subjects arrested, who stated that that address was their home. This affidavit was clearly sufficient to establish probable cause for the issuance of a search warrant. We therefore hold that the trial court did not err in refusing to suppress the evidence seized pursuant to the warrant.

Appellant next claims error in that the trial court admitted State's Exhibits A and B into evidence. Exhibit A was a small bank which was identified as having been taken in the Ft. Wayne burglary. State's Exhibit B was a jewelry case containing tie clips and other jewelry which was also identified as having been taken in the Ft. Wayne burglary. Appellant claims the admission of these items in evidence was error for the reason that they were recovered pursuant to the search of the home of the appellant located at 2417 Allegheny in Ft. Wayne. As we have above pointed out, this search was conducted pursuant to a warrant properly issued after a showing of probable cause. The items were, therefore, properly admitted into evidence.

Appellant further claims that these items were not admissible because they were not specifically named in the search warrant. The search warrant named certain specific items which were allegedly taken in the burglary of a house located at 4332 Spatz Avenue in Ft. Wayne, some of which items were recovered from the house described in the search warrant. The mere fact that other items which were not named in the affidavit for the search warrant were also taken in the same burglary and were found in the house pursuant to the search warrant does not render them inadmissible in the prosecution. A Federal District Court for the Northern District of Indiana in a recent decision stated:

'* * * Instead of preferring search warrants, a rule limiting seizure under them to the items enumerated in the description would relegate them to a secondary status, if not an anachronism in the law. What law enforcement officer...