J. E. G. v. C. J. E.

• Decision Date: 23 March 1977
• Docket Number: No. 2--775A189,2--775A189
• Parties: J.E.G., Appellant (Respondent below), v. C.J.E., Appellee (Petitioner below).
• Court: Indiana Appellate Court

Page 1030

360 N.E.2d 1030

172 Ind.App. 515

J.E.G., Appellant (Respondent below), v. C.J.E., Appellee (Petitioner below).

No. 2--775A189.

Court of Appeals of Indiana, Second District.

March 23, 1977.

David M. Adams, Castor, Richards & Adams, Noblesville, for appellant

Thomas C. Douglas, Anderson, for appellee.

SULLIVAN, Judge.

J.E.G. attacks a judgment which declares him to be the natural father of a child born to C.J.E. The judgment was premised entirely upon an admission of paternity by J.E.G. He asserts that the admission was given in open court not because it was true but because it was the only way to be released from jail. We reverse.

This action was commenced by C.J.E.'s filing of a verified petition of paternity on November 27, 1974, more than 8 months The record reflects that during the eight days of detention, an attorney, apparently at the request of J.E.G.'s family, did briefly visit and confer with J.E.G. However, this attorney did not file an appearance on behalf of J.E.G. Moreover, this conferral, the nature of which is not disclosed, was the extent of representation for J.E.G. until after entry of judgment.

after the birth of the child. On the same day, the trial court, at the request of C.J.E.'s attorney, issued a warrant for J.E.G.'s arrest. ¹ The warrant remained unserved until February 6, 1975, when J.E.G. was arrested and detained in the Madison County Jail. Thereafter, on February 14, 1975, J.E.G. was brought before the trial court.

At the February 14 proceeding, ² the trial court placed J.E.G. under oath and initially discussed the nature of the action and the ramifications of a paternity judgment if one were entered against him. During the course of this discussion, J.E.G. stated that he was '. . . pretty sure that it (the child) is mine . . .' When finally asked: 'Do you acknowledge this child to be yours?', he answered, 'Yes.' The trial court on this admission alone entered the judgment of paternity.

After entry of the judgment, J.E.G. petitioned the trial court for relief from the judgment. The substance of his attack at the subsequent hearing as well as on appeal, is that his arrest and detention was so coercive as to unconstitutionally taint the arguably equivocal admission on which the judgment rests.

Before discussing the merits of J.E.G.'s contention, we note that C.J.E. has not filed a brief in this appeal. Therefore, J.E.G. is entitled to reversal, if he demonstrates a prima facie case of reversible error. Lundsford v. Maida (1957) 127 Ind.App. 236, 140 N.E.2d 762 (En Banc).

I. ARREST WAS UNREASONABLE

We hold that J.E.G.'s arrest was unreasonable because of the court's summary issuance of the arrest warrant without probable cause to believe that J.E.G. was the putative father and that he would not respond to a notice of the commencement of the suit against him. See, State v. Klinker (1975) 85 Wash.2d 509, 537 P.2d 268.

Both the United States and the Indiana Constitutions prohibit unreasonable search and seizure. U.S.Const. Amends. IV and XIV; Ind.Const., art. 1, sec. 11. This prohibition not only applies to search and seizure of property but also to physical apprehension of persons. See, Terry v. Ohio (1968) 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889; Bacon v. United States (9th Cir. 1971) 449 F.2d 933, 942, n. 7; Bryant v. State (3d Dist. 1973) Ind.App., 299 N.E.2d 200, 204.

Reasonableness is dependent upon the interests involved, both governmental and individual. See, Camara v. Municipal Ct. (1967) 387 U.S. 523, 536--37, 87 S.Ct. 1727, 18 L.Ed.2d 930. An arrest is reasonable only when the public good, which may be furthered by its utilization, outweighs the deprivation of an individual's liberty. See, Camara v. Municipal Ct., supra.

The balancing of interests is best observable in the criminal area where the issue most often arises. There the balancing of interests is implemented by the probable cause standard. Camara v. Municipal Ct., supra, 387 U.S. at 535, 87 S.Ct. at 1734. This standard posits a balance between the interest of the public to maintain an orderly and peaceful society against a suspect's right to his liberty or privacy. When there are adequate grounds to reasonably believe that a particular suspect has committed a felony, the public interests is strong enough to justify an arrest. Consequently, an arrest of a criminal suspect with or without a warrant is constitutionally acceptable where there is probable cause to believe that the suspect has committed a felony. See, Finch v. State (1975) Ind., 338 N.E.2d 629, 631; Smith v. State (1971) 256 Ind. 603, 271 N.E.2d 133.

Although most case law which discusses the reasonableness of an arrest is within the criminal context, this by no means indicates that the Fourth Amendment protection is inapplicable in civil cases. See, United States v. Biswell (1972) 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87; Wyman v. James (1971) 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408; Camara v. Municipal Ct., supra (all deal with administrative regulatory searches).

Under the seizure portion of the Fourth Amendment, its application is essentially controlled by whether physical restraint is placed upon the person, not the purpose underlying the restraint. Bacon v. United States, supra, 449 F.2d at 942. But our analysis is not ended by blind application of criminal law precedent. Rather, since paternity actions are civil in nature, we must determine whether and to what extent there exists a probable cause requirement for arrest of a putative father. ³

The governmental interest which underlies Indiana's paternity proceedings is stayed thusly:

'It is the obligation of the state of Indiana to provide proper legal procedures that will enable children born out of wedlock to have proper care, maintenance, education, protection, support and opportunities the same as children born in wedlock; and it (is) the purpose of this act (31--4--1--1--31--4--1--33) to establish procedures that will enable such children to have such rights and privileges.' I.C. 31--4--1--1 (Burns Code Ed. 1973).

See, Sullivan v. O'Sullivan (1959) 130 Ind.App. 142, 146, 162 N.E.2d 315, 317.

This is to say that the state is genuinely concerned in assuring that the duty of supporting illegitimate children is placed upon those morally and legally obligated to do so and that such children do not unnecessarily become wards of the state. Such interest is clearly rational and substantial, see State v. Klinker, supra, and may under some circumstances justify the arrest of a putative father in order that the personal jurisdiction essential to a valid judgment for care and support may be acquired. However, we hold that an arrest may not be premised solely upon a mere filing of a verified petition alleging paternity.

As hereinbefore noted, the restraint upon individual liberty occasioned by arrest is a drastic means for protection of the public interest. Where less drastic means will effectively serve the public interest an arrest is necessarily unreasonable. Cf. Stanford Daily v. Zurcher (N.D.Cal.1972) 353 F.Supp. 124.

Such 'less drastic means' have been acknowledged and required by our Legislature, even with respect to unlawful conduct. I.C. 35--1--17--2(b) (Burns Code Ed. 1975), sets forth the procedure for issuing a summons, or in the alternative, an arrest warrant after 'an indictment (has been) found or an information . . . filed against a person charging him (only) with a misdemeanor'. This statute sanctions the issuance of a warrant only if the court has reasonable cause to believe the accused will not appear or after the accused has failed to honor the summons or after the summons has been issued and the court is satisfied the accused will not appear as directed. The statute governing arrest in paternity proceedings, I.C. 31--4--1--13, supra, is somewhat analogous.

I.C. 31--4--1--13, supra, empowers the court in which a petition of paternity has been filed 'to issue a warrant in lieu of a summons' for a putative father's arrest, provided that '(s)uch warrant and the issuance and execution thereof shall be as provided for by law in criminal actions.' Implicitly this statute demonstrates a preference for summons over the warrant, inasmuch as the warrant is issued in lieu of a summons. ⁴ In addition, the civil nature of the proceeding in which a putative father is 'charged' calls for a procedure at least as temperate as that utilized for misdemeanors which are criminal offenses.

The siring of an illegitimate child is not, in itself, a crime. See, Neill v. Ridner (1st Dist. 1972) 153 Ind.App. 149, 152, 286 N.E.2d 427, 430. It is the social consequence of that act, in the sense of economic support required for the child, which creates the need for a procedure by which the desirable ends are achieved. Thus, the conventional complaint and summons is the means which generally should be employed. It is only where there is reasonable belief that the public interest cannot be protected thereby, that an arrest may be tolerated. The Fourth Amendment reasonableness standard is met in paternity proceedings, and an arrest is justified, only when it has been determined by an impartial judicial officer that there is probable cause to believe that the named defendant is the father and that he will not respond to conventional civil process. See, State v. Klinker, supra. Cf. Bacon v. United States, supra; Stanford Daily v. Zurcher, supra. At the time of the arrest warrant issuance here, the record did not reflect any indication that J.E.G. would not respond to a summons. ⁵

II. DETENTION FOLLOWING ARREST WAS UNREASONABLE

J.E.G. was placed in the Madison County Jail after his arrest. He was held there until he was brought before the court some 8 days later. His detention was engendered by the initiation of this paternity action, an action, as we have noted, essentially civil in nature. Neill v. Ridner, supra.

With respect to the detention of a putative father...