Jones v. State

• Citation: 409 N.E.2d 1254
• Decision Date: 25 September 1980
• Docket Number: No. 2-979A284,2-979A284
• Parties: Robert Tillman JONES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 1254

409 N.E.2d 1254

Robert Tillman JONES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-979A284.

Court of Appeals of Indiana, Fourth District.

Sept. 25, 1980.

Raymond I. Klagiss and Charles E. Johnson, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John K. Silk, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Presiding Judge.

Robert Tillman Jones appeals ¹ his conviction in a jury-waived trial for possession of heroin, in violation of the 1935 Narcotics Act. He argues that the trial court erred in refusing at a pre-trial suppression hearing and again at trial to suppress evidence allegedly obtained in violation of his Fourth Amendment rights. As a corollary, appellant argues that if the evidence claimed to be illegally seized is suppressed, there is insufficient remaining evidence to sustain his conviction. Because we conclude that the evidence was properly admissible and, therefore, that sufficient evidence to support appellant's conviction exists, we affirm.

The facts most favorable to the judgment may be summarized as follows. On September 2, 1969, at approximately 9:45 A.M., Captain Jones of the Indianapolis Police Department, received a telephone tip from a named informer that Appellant Jones, a man named Robert Beeler, and a lady were in Room 45 at the Foster Motel with heroin in their presence. He summoned three officers to accompany him to the Foster Motel to investigate the tip. The officers procured no arrest or search warrant. Upon arrival at the motel, the plainclothed officers inquired of the desk clerk and discovered that appellant was a registered guest of Room 45. Captain Jones and another officer, Sergeant Bilbrey, stationed themselves in an observatory position behind the motel. The other two officers, accompanied by a motel maid with keys, went to the door of Room 45 and knocked. A woman pulled the drapes back, peered out and then released the drapes. While the officers at the door were waiting to be admitted, Captain Jones and Sergeant Bilbrey from their position behind the motel heard their fellow officers knock at the door. Within 10-15 seconds of the knocking, they observed a man they later identified as the appellant throw a tin-foil package later proved to contain heroin out the window. Meanwhile, after waiting approximately one minute after the drapes were dropped for the door to be opened, the officers at the front door knocked again. An estimated one minute later, appellant opened the door. The officers identified themselves as police officers, appellant stepped back and indicated for the officers to enter. Upon entry, the officers found that the room was occupied by three people: appellant, a man named Robert Beeler, and a woman Carolyn Johnson.

The testimony of the officers as to what next ensued is conflicting. According to the testimony of both Captain Jones and Sergeant Bilbrey, 5-10 minutes elapsed before they returned to the front of the motel with the recovered packet and entered appellant's room. When they entered, they found appellant handcuffed and already under arrest. The arresting officer testified, however, that only after Captain Jones and Sergeant Bilbrey entered the motel room and indicated that they had seen appellant throw the package out the window was appellant handcuffed and placed under arrest. A preliminary field test had been performed which indicated the substance in the packet was heroin. Such testimony further indicates that the entry of Captain Jones and Sergeant Bilbrey followed closely in time to the entry by the officers at the front door and that no search of the premises or appellant occurred prior to Captain Jones' entry.

We are bound to accept the factual version of events most favorable to the trial court judgment, Poindexter v. State, (1978) Ind., 374 N.E.2d 509, 514 for, when the evidence supports conflicting inferences, we cannot substitute our judgment for that of the trial court nor can we judge the credibility of the witnesses. Jones v. State, (1978) Ind., 377 N.E.2d 1349, 1353. We accept as true, therefore, as the trier of fact necessarily did, the testimony of the arresting officer both that the arrest of appellant followed the communication by Captain Jones of the discovery of the packet and that no search of appellant or the motel room preceded his arrest. ²

In challenging the legality of the seizure of heroin, appellant claims that because the police officers did not obtain any warrant, arrest or search, prior to their entry into the motel room, the entry by the officers was illegal. Because the packet was thrown from the window in response to the officers presence at the door, such presence threatening imminent and illegal entry, appellant alleges it is the tainted fruit of the subsequent illegal entry and search, and should, therefore, be suppressed. Critical to this argument is the assertion that the officers were without probable cause or other justification to enter the apartment.

The State refutes this assertion with the claim that probable cause for the arrest accompanied by exigent circumstances sufficient to justify the officers' failure to obtain a warrant existed based on the informant's tip. We delay, therefore, our analysis of the reasonableness of the officers' presence and actions at the motel to first determine whether probable cause coupled with exigent circumstances supplied by the informant's tip provided a sufficient and independent basis for the arrest of appellant and the seizure of the contraband.

It is axiomatic that warrants, both search and arrest, are required unless probable cause exists along with exigent circumstances rendering it impractical to seek a warrant. Pawloski v. State, (1978) Ind., 380 N.E.2d 1230. The threshold inquiry, before determining whether exigent circumstances existed, is whether the informant's tip supplied the requisite probable cause to support a search or arrest of appellant. We examine, therefore, the information contained in the tip to determine whether the two prong test established in Aguilar v. Texas, (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, is satisfied. Under Aguilar-Spinelli, when probable cause is based upon an informant's tip, the affiant must (1) set forth "the underlying circumstances necessary to enable a magistrate independently to judge the validity of the informant's conclusion," and (2) set forth evidence that the informant is "credible" or his information is "reliable." Spinelli, 393 U.S. at 413, 89 S.Ct. at 587. The tip here falls short of the requirements set forth in Aguilar-Spinelli and is not saved by sufficient independently corroborating facts. United States v. Harris, (1971) 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723. While there was evidence that the informant had proved reliable in the past, his information having successfully led to several vehicle theft convictions some undisclosed number of years earlier, there was no evidence presented from which a magistrate could conclude that a factual basis for the information furnished existed. ³ Madden v. State, (1975) 261 Ind. 223, 328 N.E.2d 727; Potter v. State, (1979) Ind.App., 385 N.E.2d 955. The record is similarly devoid of any corroborating information of underlying circumstances ⁴ independent of the tip that would indicate that the information was trustworthy. ⁵ State v Mooney, (1979) Ind.App., 398 N.E.2d 698, 700.

It necessarily follows that, as the officers were without probable cause to obtain a warrant, the presence or absence of exigent circumstances is without legal significance. A search without probable cause is never justified by the need to prevent the disappearance or destruction of evidence of a crime. Cf. United States v. Scott, (9th Cir. 1975) 520 F.2d 697 (while exigencies of "hot pursuit" may sometimes excuse the lack of a warrant, it cannot excuse the lack of probable cause). However, even were probable cause to be found, the fact that narcotics were involved does not, standing alone, amount to exigent circumstances justifying a warrantless search or arrest. For even when authorities have probable cause to conduct a search, only in a few specially established and well-delineated situations will warrantless searches withstand constitutional scrutiny. ⁶ Schneckloth v. Bustamonte, (1973) 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, Pawloski v. State, (1978) Ind., 380 N.E.2d 1230, 1233.

Despite the absence of a warrant supported by probable cause to arrest appellant or search his motel room, the evidence obtained will not be suppressed if the actions of the police officers in going to the motel were reasonable and if their actions in entering appellant's motel room did not amount to an illegal search. For if the police were, at all times, lawfully present where the property was seized, there is no constitutional violation in seizing what is abandoned property. ⁷ United States v. Maryland, (5th Cir. 1973) 479 F.2d 566.

The linch pin for appellant's position is the assertion that the entry of the police officers, without a warrant supported by probable cause, into appellant's motel room constituted an illegal entry and search in violation of appellant's Fourth Amendment rights. Arguing that the throwing of the package and the entry by the police into the motel room is one transaction which cannot legitimately be separated, appellant submits that but for the threatened illegal entry and search, the abandonment would not have occurred. As fruits of the threatened illegal search, appellant argues, the evidence must be suppressed.

Appellant places his chief reliance upon Hobson v. United States, (8th Cir. 1955) 226 F.2d 890, where the court suppressed property thrown from a window after officers had, without probable cause, sought to gain admission to defendant's home. The property was thrown either immediately...