Ingle v. State

• Decision Date: 26 June 1978
• Docket Number: No. 2-876A309,2-876A309
• Citation: 377 N.E.2d 885,176 Ind.App. 695
• Parties: Richard I. INGLE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 885

377 N.E.2d 885

176 Ind.App. 695

Richard I. INGLE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-876A309.

Court of Appeals of Indiana,Second District.

June 26, 1978.

Terry E. Johnston, Valparaiso, for appellant

Theo. L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Richard I. Ingle (Ingle) appeals from convictions of Conspiracy ¹ and Possession of a Controlled Substance with Intent to Deliver, to-wit, Marijuana, ² claiming that the trial court erred in allowing hearsay testimony prior to the prima facie establishment of a conspiracy; in refusing to give his tendered instructions regarding reasonable doubt and circumstantial evidence; in overruling his Motion to Suppress; in admitting evidence of separate crimes; in considering within the presence of the jury whether self-incriminating statements were made voluntarily, and in admitting certain evidence. Ingle also claims the charging information was deficient and at variance with the evidence presented by the State.

We affirm.

FACTS

Abel Quintero (Quintero) and Ingle had been co-workers and friends in Carroll County, Indiana, for four or five years. Quintero became unemployed and began selling marijuana obtained from Ingle as a source of income.

Some time in 1975 Quintero met undercover police officers Gary Ashenfelter (Ashenfelter) and Russell Ricks (Ricks). Following two or three transactions between Quintero and the officers, involving only minor quantities of marijuana, he, Ricks and Ashenfelter discussed a possible transaction involving larger quantities.

On May 2, 1975, Quintero, Sorenson and Jim Ebrite met at a motel in Lafayette, Indiana to discuss a price. After negotiating, they arrived at a price of Seven Hundred Fifty ($750.00) Dollars for five (5) pounds of marijuana. Following departure of the rest of the individuals, Quintero called Ingle from the motel to inform him of the proposed transaction and for assurance that Ingle had the desired quantity of marijuana.

The next day, May 3, 1975, Quintero and Sorenson met Ricks and Ashenfelter at a gas station in Delphi, Indiana. Quintero, driving alone in his own automobile, left to pick up the marijuana. Sorenson accompanied the police officers to the "meeting spot." Later, on a country road in northeast Carroll County, Quintero, driving Ingle's automobile, arrived with the marijuana and sold it to the undercover police officers. Quintero and Sorenson were arrested.

Following their arrest Quintero and Sorenson were taken to the Carroll County jail where Quintero informed the police officers where he had gotten the five pounds of marijuana (from Ingle) and where Ingle lived. He then drew a map showing Ingle's residence.

Ricks and Ashenfelter, accompanied by four or five other officers, all of whom were dressed in plain clothes, then left to visit Ingle. Arriving at the Ingle residence the officers were met at the back door by Ingle who asked them their business. Ashenfelter's reply was that he had just been "ripped off" by Quintero and that he intended to take Quintero's automobile which was parked at the Ingle residence in lieu of the marijuana. Ingle informed them that they were not to take Quintero's car. An altercation ensued and ended only when someone inside the house, prompted by a request from Ingle, appeared at the back door with a shotgun. After further discussion Ingle invited the undercover officers into his home for a discussion of the "problem" and to wait for Quintero's return.

After entering the residence the officers, and five individuals who were with Ingle in the house prior to the arrival of the officers Ingle then told his younger brother to "go get us some joints." The officers observed the younger Ingle open a door, heard him walk down into the basement; then heard him come up the stairs into their view again. Upon his return to the family room two or three minutes later the younger brother possessed two hand rolled marijuana cigarettes. The marijuana was lit, passed around and smoked; soon thereafter all, including Ingle, were arrested.

sat in [176 Ind.App. 699] the family room of the residence and discussed the problem. At one point Ingle apparently believing Ashenfelter's story about Quintero having "ripped him off", stated "there must be some sort of mistake if you've been ripped off I've been ripped off." Inside the house the officers observed, in plain view, a terrarium with what appeared to be several marijuana plants growing in it. On the bar in the family room was a plastic bag containing still more marijuana.

Following the arrests, the officers went down to the basement to see whether anyone else was in the house. There they discovered in plain view a set of scales and approximately five pounds of marijuana reposing in an open suitcase lying on a work-bench. It was this marijuana for which Ingle was convicted of Possession with Intent to Deliver.

At trial Quintero testified that the five pounds of marijuana sold by him, and forming the basis for the conspiracy charge, were obtained from Ingle. Quintero also testified that Ingle had been in contact with him during the negotiations over price between Quintero, Ashenfelter and Ricks. After the price was agreed on, Quintero testified that he called Ingle to make arrangements to pick up the marijuana for delivery. In picking up the marijuana at Ingle's house a switch was made to Ingle's car at Ingle's suggestion.

Quintero also testified that the Seven Hundred Fifty ($750.00) Dollars, had the deal gone smoothly, was to be returned to Ingle. Quintero and Sorenson were to receive Twenty-five ($25.00) Dollars each for their efforts.

DECISION

PARTIES' CONTENTIONS Ingle contends that his Motion to Suppress the marijuana found in his basement was improperly denied because the initial entry into his house was the result of deceit and deception.

The State counters by saying the search was reasonable as the marijuana was in plain view and in danger of being removed.

CONCLUSION The trial court did not err in overruling Ingle's Motion to Suppress the marijuana discovered in Ingle's basement.

The police officers took Quintero and Sorenson to the Carroll County jail following their arrest. Quintero then told them that he was driving Ingle's car, that his car was located at Ingle's house, and that he had obtained the marijuana from Ingle. He gave the police officers directions to the Ingle residence.

These facts prompted the officers to go to Ingle's house to investigate further.

Although the police officers engaged in a charade which resulted in their invitation to enter the house, the deception practiced by them to gain entry did not vitiate the consent to enter. The United States Supreme Court has held that police officers need not identify themselves as such and a person suspected of criminal activities of this type has no right to be told his licensees are police officers. One engaged in such activities takes his chances as to whom he invites into his residence for illegal purposes. Misrepresentation of identity by undercover agents does not violate Fourth Amendment rights. Lewis v. United States (1966), 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312; United States v. Quintana (7th Cir. 1975) 508 F.2d 867; Grzesiowski v. State (1976), Ind.App., 343 N.E.2d 305.

Once inside the house, the officers were supplied with marijuana and saw marijuana in plain view. Thus the warrantless arrests were justified on the basis that the officers saw a felony being committed in their presence. Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133; Jenkins v. State (1977), Ind.App., 361 N.E.2d 164.

Furthermore, the officers testified that they suspected additional persons were present in the house. Under Indiana case law one present in a house in which officers saw marijuana growing in the open could, under certain circumstances, be found to be in constructive possession of that marijuana. Thomas v. State (1973), 260 Ind. 1, 291 N.E.2d 557; Martin v. State (1978), Ind.App., 372 N.E.2d 1194. Therefore, the officers were justified in walking through the house in search of others.

Upon entering the basement in search of suspects, the officers saw large quantities of marijuana in plain view in an open suitcase on a bench. Any object in plain view of a police officer who has proper justification to be in a position to afford that view is properly subject to seizure. Ford v. State (1971), 257 Ind. 498, 275 N.E.2d 808; Alcorn v. State (1970), 255 Ind. 491, 265 N.E.2d 413. See also Bruce v. State, 375 N.E.2d 1042, 1978.

PARTIES' CONTENTIONS Ingle next argues that the Information charging him with count one (Conspiracy) was insufficient to inform him of the specifics of the crime charged. The State responds that, under the modern rules of pleading, the details as specified were fully adequate to allow Ingle to prepare his defense.

CONCLUSION The charging information was sufficiently specific to provide notice of the evidence of the conspiracy to be relied upon by the State.

Omitting formal parts, the information stated:

On or about the 3rd day of May, 1975, in Carroll County, in the State of Indiana, Richard I. Ingle did unite with Abel L. Quintero, Jr. for the purpose of committing a felony within the State of Indiana, to-wit: to knowingly, unlawfully and feloniously deliver to Special Agent Russell Ricks and Special Agent Gary Ashenfelter a controlled substance, to-wit: marijuana of an aggregate weight of 5 pounds, which is 2268 grams being more than 25 grams of said substance, in violation of the Indiana Uniform Controlled Substances Act, Schedule I, said delivery being made on County Road 625W near County Road 500N.

An indictment or information must "state the facts and circumstances" which underlie the charged offense. Kain v. State (1954), 234 Ind. 160, 123 N.E.2d 177; Wilson v. State (1975), Ind.App....