Highsaw v. State
| Decision Date | 17 October 1978 |
| Docket Number | No. 977S660,977S660 |
| Citation | 269 Ind. 458,381 N.E.2d 470 |
| Parties | Sylvester HIGHSAW, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John F. Ittenbach, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.
At the conclusion of a jury trial on April 6, 1977, in Marion Criminal Court, appellant Highsaw was convicted of two counts of possession of a controlled substance to-wit: heroin. He was sentenced to a term of fifteen years imprisonment with a concurrent sentence of five years imprisonment.
Two errors are asserted in this appeal: (1) whether the trial court erred in overruling appellant's Motion to Suppress evidence seized from his person, and; (2) whether or not the trial court erred in not allowing appellant a continuance when certain changes in the charges against appellant were made.
Appellant first challenges the constitutionality of the search of his person which resulted in the seizure of heroin. The facts relevant to this issue are as follows: On March 21, 1977, the Indianapolis Police obtained two search warrants for two Indianapolis residences. One of these two residences was alleged to be under the control of Sylvester Highsaw, appellant herein. The police affidavit alleged that a confidential, credible and reliable informant saw heroin used and sold at appellant's residence. The search warrant issued was to the effect that both appellant's residence and the person of appellant were to be searched. On March 22, 1977, Indianapolis police officers approached one of the residences named in the search warrant and observed appellant Highsaw proceeding down the street in his automobile. The officers recognized appellant from previously having seen a picture of him. The officers then stopped the automobile in which appellant was riding, approached appellant, identified themselves, and then saw appellant lower his hand which was made into a fist. A police officer told appellant to keep his hand where it was and open it up. When appellant opened his hand, the police observed a tinfoil packet which was found to contain heroin.
Whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case. South Dakota v. Opperman (1976), 428 U.S. 364, 372, 96 S.Ct. 3092, 3098-99, 49 L.Ed.2d 1000, 1007; Guardiola v. State (1978), Ind., 375 N.E.2d 1105, 1110. The warrants issued for the search of both the residences and appellant personally in this case demonstrate that the police had probable cause to suspect appellant of narcotics violations. Thus, when police observed and recognized appellant driving down the street, they were justified in stopping his automobile and searching him, and arresting him after they found heroin during this search. Under all the facts and circumstances noted here, this search was reasonable under the Fourth Amendment of the United States Constitution. Appellant's Motion to Suppress the heroin was thus properly denied and there is no error on this issue.
Appellant's second contention of error is that the trial court denied him due process and a fair trial when it denied his request for a continuance based on an alleged material change in the charging information. This alleged error is based on the fact that on the day of appellant's trial, the prosecutor moved to make certain amendments to the second count upon which appellant was charged. The date on which the offense was supposed to have been committed was changed along with a change in factual allegation to the effect that instead of possessing over ten grams of heroin, now appellant was being charged with possessing less than ten grams of heroin. Appellant, at this time, made an oral motion for continuance. Appellant did not discuss the...
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Daniels v. State
...commensurate with such changes. Ind.Code Sec. 35-3.1-1-5 (Burns 1979); Pavone v. State, (1980) Ind., 402 N.E.2d 976, Highsaw v. State, (1978) 269 Ind. 458, 381 N.E.2d 470. Here the information was amended three months after the original six counts were filed, but defendant still had fifteen......
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Williams v. State
...with such changes. Ind. Code § 35-3.1-1-5 (Burns 1975 Repl.); Gilmore v. State, (1981) Ind., 415 N.E.2d 70; Highsaw v. State, (1978) 269 Ind. 458, 381 N.E.2d 470. In this case, defendant has not shown that the addition of the second aggravating circumstance resulted in any prejudice to his ......
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Norris v. State
...Howard v. State (1978) Ind., 377 N.E.2d 628, 629, Cert. denied (1978) 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708. See Highsaw v. State (1978) Ind., 381 N.E.2d 470, 471. We find no error as to this Appellant orally moved to dismiss Count II of the information immediately prior to the trial ......
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Davenport v. State
...is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case. Highsaw v. State, (1978) 269 Ind. 458, 381 N.E.2d 470, cert. denied, 442 U.S. 941, 99 S.Ct. 2884, 61 L.Ed.2d 311 The defendant and the state agree that the officers here did not......