Hardin v. State, No. 875S187

Docket NºNo. 875S187
Citation265 Ind. 635, 358 N.E.2d 134
Case DateDecember 30, 1976
CourtSupreme Court of Indiana

Page 134

358 N.E.2d 134
265 Ind. 635
Fred HARDIN and Carl Taylor, Appellants (Defendants below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 875S187.
Supreme Court of Indiana.
Dec. 30, 1976.

[265 Ind. 636] Palmer K. Ward, Indianapolis, for appellants.

Theo. L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Appellants Hardin and Taylor were charged by information with conspiracy to deliver a controlled substance and unlawful delivery of a controlled substance. In a trial by the court they were found guilty of

Page 135

both charges and were sentenced to two-fourteen years for conspiracy and ten years-one day for unlawful delivery of a controlled substance.

The facts of this case show that one Jesse Boss, a convicted felon, a drug user for five years, while under a pending robbery charge, made an agreement with the prosecutor and police to make a controlled narcotic buy from appellants, from whom he had bought drugs in previous dealings. As consideration for a successful venture, officials agreed to provide him with a 'break' on his pending charge. Boss, stripsearched, wired for sound and carrying $300 in marked bills, entered appellant Fred Hardin's shop. Appellant Hardin declared, 'I thought I told you to call.' Boss replied, 'Well, I lost my billfold and your number.' Then Hardin told Boss to come into the office. Hardin then asked, 'How many do you want, fifty?' Boss then gave him $300. Appellant Taylor [265 Ind. 637] came in and was told something by Hardin. Taylor then left. On instruction and in the company of two others, Boss left the shop and drove to a Burger Chef restaurant parking lot. About ten minutes later Taylor approached from the direction of a nearby White Castle restaurant and delivered a small brown paper bag to Boss and the other two men which contained 150 packets of heroin. The three divided the packets evenly and left. Boss then delivered his 50 packets to the police controlling the covert operation.

The sole issue presented for our review concerns the alleged entrapment of appellants. Appellants argue that there existed no probable cause to initiate the transaction and that there was insufficient evidence to show their predisposition to commit the offense.

Beginning with Walker v. State, (1970) 255 Ind. 65, 262 N.E.2d 641, when entrapment becomes an issue, the prosecution has been required to prove that enforcement officials had probable cause of suspecting that the accused was engaged in illegal conduct and was already predisposed to commit the crime. See: Smith v. State, (1972) 258 Ind. 415, 281 N.E.2d 803.

Today we re-examine our position taken in Walker. Justice Prentice, writing in Smith v. State, expressed the dilemma with which we are still faced:

'We recognize the absolute necessity, under certain circumstances, of permitting police officers to use this method of detecting crimes and apprehending criminal suspects. The illicit drug traffic running rampant through our society today, the havoc that it is wreaking and its secretive nature and the difficulty of its detection are compelling reasons for permitting this method of criminal detection and apprehension. In view of the magnitude of this problem, it may well be in order to consider means of allowing a greater latitude of investigative procedures in such cases, provided, it can be done without endangering substantial individual rights. It is, nevertheless, a repugnant practice, distasteful at its best and intolerable at its worst.'

Smith v. State, supra, 258 Ind. at 418, 281 N.E.2d at 805.

[265 Ind. 638] Although still recognizing the onerous aspects of entrapment, we believe the probable cause to suspect requirement has proven more difficult in its application than originally believed and no longer should be an additional burden upon law enforcement officials as they combat the trafficking in drugs. 1 Therefore we overrule Walker v. State, supra, and its progeny to the extent that it requires the state to prove probable cause to suspect when entrapment has been properly raised.

The second portion of our entrapment rule comes from the position embraced by the majority in the Supreme Court in Sorrells

Page 136

v. United States, (1932) 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, (1958) 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; and recently reaffirmed n Russell v. United States, (1973) 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. This approach centers upon the predilection of the accused to commit the charged crime.

The minority stance in each of these opinions has been that an objective standard that looks only to the police conduct be adopted. This position has been urged upon us by many legal commentators 2 and adopted in several jurisdictions. 3 The...

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48 practice notes
  • Dockery v. State, No. 18S02-9412-CR-1229
    • United States
    • Indiana Supreme Court of Indiana
    • December 19, 1994
    ...on the part of the defendant to commit the crime charged, entrapment is established as a matter of law. Hardin v. State (1976), 265 Ind. 635, 639, 358 N.E.2d 134, 136; Gray v. State (1967), 249 Ind. 629, 633-34, 231 N.E.2d 793, 796; Fearrin v. State (1990), Ind.App., 551 N.E.2d 472, 474, tr......
  • Coates v. State, No. 485
    • United States
    • Indiana Supreme Court of Indiana
    • March 8, 1989
    ...265 Ind. 664, 359 N.E.2d 244; Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641, overruled on other grounds in Hardin v. State (1976), 265 Ind. 635, 358 N.E.2d 5 However, language in Griffin to the effect that the Fifth Amendment "forbids ... comment by the prosecution on the accused's si......
  • Lewandowski v. State, No. 579S130
    • United States
    • Indiana Supreme Court of Indiana
    • May 17, 1979
    ...overreaching by law enforcement officials. Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641. However, in Hardin v. State (1976), Ind., 358 N.E.2d 134, our Supreme Court overruled Walker to the extent that it required proof of probable cause to suspect in an entrapment case. This Court th......
  • Townsend v. State, No. 2-479A110
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1981
    ...had been raised. How it was raised, or by whom, was not at issue. Most Indiana cases are similarly unspecific. In Hardin v. State (1976) 265 Ind. 635, 358 N.E.2d 134, our Supreme Court adopted the majority position of Sorrells v. United States (1932) 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413......
  • Request a trial to view additional results
48 cases
  • Dockery v. State, No. 18S02-9412-CR-1229
    • United States
    • Indiana Supreme Court of Indiana
    • December 19, 1994
    ...on the part of the defendant to commit the crime charged, entrapment is established as a matter of law. Hardin v. State (1976), 265 Ind. 635, 639, 358 N.E.2d 134, 136; Gray v. State (1967), 249 Ind. 629, 633-34, 231 N.E.2d 793, 796; Fearrin v. State (1990), Ind.App., 551 N.E.2d 472, 474, tr......
  • Coates v. State, No. 485
    • United States
    • Indiana Supreme Court of Indiana
    • March 8, 1989
    ...265 Ind. 664, 359 N.E.2d 244; Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641, overruled on other grounds in Hardin v. State (1976), 265 Ind. 635, 358 N.E.2d 5 However, language in Griffin to the effect that the Fifth Amendment "forbids ... comment by the prosecution on the accused's si......
  • Lewandowski v. State, No. 579S130
    • United States
    • Indiana Supreme Court of Indiana
    • May 17, 1979
    ...overreaching by law enforcement officials. Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641. However, in Hardin v. State (1976), Ind., 358 N.E.2d 134, our Supreme Court overruled Walker to the extent that it required proof of probable cause to suspect in an entrapment case. This Court th......
  • Townsend v. State, No. 2-479A110
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1981
    ...had been raised. How it was raised, or by whom, was not at issue. Most Indiana cases are similarly unspecific. In Hardin v. State (1976) 265 Ind. 635, 358 N.E.2d 134, our Supreme Court adopted the majority position of Sorrells v. United States (1932) 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413......
  • Request a trial to view additional results

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