Hardin v. State, 268

• Citation: 257 N.E.2d 671,254 Ind. 56
• Decision Date: 27 April 1970
• Docket Number: No. 268,268
• Parties: Wilbur HARDIN, Appellant, v. STATE of Indiana, Appellee. S 24.
• Court: Supreme Court of Indiana

Page 671

257 N.E.2d 671

254 Ind. 56

Wilbur HARDIN, Appellant, v. STATE of Indiana, Appellee.

No. 268 S 24.

Supreme Court of Indiana.

April 27, 1970.

William C. Erbecker, Indianapolis, for appellant.

John J. Dillon, Former Atty. Gen., Dennis J. Dewey, Former Deputy Atty. Gen., Theodore Sendak, Atty. Gen., for appellee.

DeBRULER, Judge.

This is an appeal from a conviction for possession of marijuana in violation of Acts 1935, ch. 280, as amended by Acts 1961, ch. 90, the same being Burns Ind.Stat.Ann. § 10--3538(c). Trial was without jury in Marion County Criminal Court No. One, and appellant was sentenced to two to ten years in prison.

In his brief on appeal appellant alleges that certain evidence and statements of appellant were illegally obtained, there was insufficient evidence that the substance in question was marijuana, and the statute is unconstitutional.

The evidence most favorable to appellee was that on October 5, 1965, Officers Ward and Jones of the Indianapolis Police Department Narcotics Squad, and one federal narcotics agent were driving in the 1800 block of Yandes Street, Indianapolis, Indiana, when they saw appellant and several other men standing on the porch of an abandoned, vacant house. Jones drove around the block, dropped Ward off in back and returned to park in front of the house where he got out of the car. As Jones approached the abandoned house the men went inside and Jones heard them running. As he entered he saw three men crawl out through the broken and empty windows. Then Jones heard Ward in the backyard shout something he did not understand and saw appellant come toward him for the back door. Jones testified that appellant appeared to be drunk, and he was placed under arrest for drunk. Appellant testified that he and the men had been drinking gin and wine immediately prior to the arrival of the police.

As Ward approached the back of the house he saw appellant come out of the back door and throw a small white coin envelope in the weeds on the South side of the porch. As appellant turned around and ran back into the abandoned house, Ward yelled, 'Wilbur, you are under arrest.' Ward got the white coin envelope and took it into the house to Jones.

When Jones received the package which Ward had seen appellant throw away, Jones examined it, found it contained a green weedy substance, and he then placed appellant under arrest for possession of marijuana. Before Jones could advise appellant of his rights appellant said, 'Dick Jones you know that wasn't none of my grass.' Ward also heard that remark. Jones then advised the appellant that he did not have to talk to him and that anything he said would be used against him. Appellant then repeated the claim that the 'grass' was not his.

A. Appellant alleges that the evidence introduced against him at trial, the package and its contents retrieved from the weeds by Officer Ward, was obtained as the result, not of any specific act amounting to an arrest, but of an 'unjustified and illegal course of conduct of the investigating officers.' Appellant says the evidence was the fruit of such conduct and tainted by it so as to render it inadmissible.

In the case at bar the police officers had a right to investigate the activities of a group of men drinking in and around a vacant, abandoned house. It is common knowledge that such houses are a constant source of danger to the surrounding houses due to fires started either purposely or carelessly, by persons temporarily on the premises, even though for an innocent purpose. Such persons may also accidentally create dangerous conditions for children attracted there to play. In the course of this legitimate investigation by the police, and prior to any arrest, the men fled and appellant abandoned the package in question by throwing it out the back door into some weeds. That package was admissible because the police conduct was perfectly legal and did not amount to an arrest. This view is supported by Rios v. United States (1960), 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688, when the United States Supreme Court said:

'Here justification is primarily sought upon the claim that the search was an incident to a lawful arrest. Yet upon no possible view of the circumstances revealed in the testimony of the Los Angeles officers could it be said that there existed probable cause for an arrest at the time the officers decided to alight from their car and approach the taxi in which the petitioner was riding. * * * This the Government concedes.

'If, therefore, the arrest occurred when the officers took their positions at the doors of the taxicab, then nothing that happened thereafter could make that arrest lawful, or justify a search as its incident. * * * But the Government argues that the policemen approached the standing taxi only for the purpose of routine interrogation, and that they had no intent to detain the petitioner beyond the momentary requirements of such a mission. If the petitioner thereafter voluntarily revealed the package of narcotics to the officers' view, a lawful arrest could then have been supported by their reasonable cause to believe that a felony was being committed in their presence. The validity of the search thus turns upon the norrow question of when the arrest occurred, and the answer to that question depends upon an evaluation of the conflicting testimony of those who were there that night.' (Emphasis added.) 364...