Layman v. State

• Citation: 407 N.E.2d 259
• Decision Date: 14 July 1980
• Docket Number: No. 2-280A61,2-280A61
• Parties: Larry LAYMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 259

407 N.E.2d 259

Larry LAYMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2-280A61.

Court of Appeals of Indiana, First District.

July 14, 1980.

Donald A. Scheer, Cassidy & Scheer, Marion, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Larry Layman appeals from his conviction by a jury of two counts of Theft and

one count of Possession of Marijuana, over thirty grams, for which he was sentenced to a determinate term of two years imprisonment on each count, the sentences to be served consecutively.

FACTS

On January 26, 1979, a search warrant was issued by Grant Superior Court II upon the affidavit of Sergeant Kreider of the Indiana State Police for the seizure of "controlled substances" at 208 and 212 East 38th Street in Marion, Grant County, Indiana. At approximately 11:00 p. m. that same day the warrant was executed upon the residence at 212 East 38th Street by eight heavily armed police officers, five of whom approached the residence from the front, the remaining three covering the rear entrance. Members of the Indiana State Police, of the Marion Police Department, and of the Grant County Prosecutor's Office participated in what they later characterized as a "raid." Officer Spangler knocked on the door of the house, identified himself as a police officer, and upon hearing shuffling from the interior, pushed open the door. Approximately five seconds separated the knock and announcement from the entry. Layman was standing about ten feet from the door; his girlfriend, Laura Delaporte, was seated on a sofa some twelve feet from the door; their seventeen month old daughter was asleep in an adjacent bedroom. A search of the residence was conducted under the supervision of the Grant County Prosecutor. A quantity of marijuana was seized, together with forty-six articles of personal property, including two antique beds, power tools, camera equipment, stereo components, money, and weapons. At the time of the seizure police had reason to believe that antique furniture had been stolen in Grant County; the Prosecutor himself directed that all the property be seized. Appellant was charged with and convicted of two counts of theft of two of the handguns seized, as well as of the possession of marijuana.

ISSUES

Appellant raises four issues for our consideration on appeal:

1. Whether the trial court erred in refusing to exclude the evidence seized in the search because the search warrant was not supported by an adequate showing of probable cause;

2. Whether the trial court erred in refusing to exclude the evidence seized in the search because the search warrant was improperly executed;

3. Whether the trial court erred in refusing to exclude the evidence seized in the search because the scope of the search exceeded the authority granted in the search warrant;

4. Whether the trial court erred in not directing the verdict for appellant because the evidence was insufficient to prove appellant's intent to commit theft.

Because of our decision in this case, we need discuss only the first issue. We reverse and remand for a new trial.

DISCUSSION

Appellant contends that the trial court erred in not excluding the evidence seized by the state pursuant to the search warrant issued in this case, because the warrant was not supported by probable cause. We agree. We note initially that appellant properly preserved this issue for appeal first, by raising the issue in a pre-trial Motion to Suppress; second, by objecting to the introduction of the evidence again at trial; third, by raising and discussing the issue in his Motion to Correct Errors; and finally by stating and supporting his argument with cogent discussion and authority in his appellate brief. Appellant contends that the issuance of a search warrant without probable cause violates his constitutional rights under the fourth amendment to the Constitution of the United States and article I, § 11, of the Constitution of the State of Indiana. Both constitutions express the same prohibition of the issuance of general warrants by either federal or Article I, § 11 of the Indiana Constitution reads as follows:

state governments in almost identical language. ¹

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." ²

The basic purpose of the fourth amendment, upon which article I, § 11 of Indiana's Constitution is modeled, is to balance the public's interest in protecting society from criminal activity against the individual's fundamental right and expectation of privacy. Payton v. New York, (1980) --- U.S. ---, 100 S.Ct. 1371, 63 L.Ed.2d 639. It is the general rule that a search must be reasonable and that a search conducted without a warrant is presumed unreasonable unless certain exigent circumstances exist. Moreover, a search must be limited in scope to certain specifically enumerated items. Traditionally these items have been described as fruits of a crime, instrumentalities of a crime, contraband, and more recently mere evidence. Warden, Md. Penitentiary v. Hayden, (1967) 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. See IC 35-1-6-1 (Burns Code Ed., 1979 Repl.). The existence of a warrant, however, does not guarantee that the search made pursuant thereto is a reasonable one. Agnello v. U.S., (1925) 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145. Where the warrant is issued without probable cause, the warrant is defective and items seized as a result of the warrant must, on proper motion, be suppressed. Ashley v. State, (1968) 251 Ind. 359, 241 N.E.2d 264. Where a warrant is issued, furthermore, it must strictly comply with the constitutional and statutory law relating to search and seizure. Rohlfing v. State, (1949) 227 Ind. 619, 88 N.E.2d 148; Kinnaird v. State, (1968) 251 Ind. 506, 242 N.E.2d 500. IC 35-1-6-2(a) provides that a search warrant may be issued by a judge upon the filing of an affidavit

"particularly describing the house or place to be searched and the things to be searched for, or particularly describing the person to be arrested, and alleging substantially the offense in relation thereto, and that the affiant believes and has good cause to believe that such things as are to be searched for are there concealed, or that the person to be arrested committed said offense, and setting forth the facts then in knowledge of the affiant or information based on credible hearsay, constituting the probable cause. When based on hearsay, the affidavit shall contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished."

The affidavit ³ is to apprise the magistrate "of the underlying facts and circumstances tending to show that there is probable cause." Kinnaird v. State, supra, 242 N.E.2d at 506. The requirement that the determination of probable cause be a judicial The question in this case is reduced, therefore, to whether or not there was sufficient factual information on the face of the affidavit from which a neutral and detached magistrate could reasonably have concluded that probable cause existed for the issuance of a search warrant. Our approach is two-fold First, we identify the questions a court must ask in determining whether a search is reasonable under the circumstances, i.e., whether probable cause exists for a warrant to issue. Second, we apply the standard set out by the Indiana Supreme Court in determining whether enough facts are presented to enable a magistrate to answer these questions independently and apart from the conclusions of the affiant.

and not a police, determination goes to the very heart of the fourth amendment. Id.; Johnson v. U.S., (1948) 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Aguilar v. Texas, (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Otherwise, the security of people's homes would be left to the discretion of police officers who are "engaged in the often competitive enterprise of ferreting out crime." Johnson v. U. S., 333 U.S. at 14, 68 S.Ct. at 369.

While the quantity and nature of the constituent elements necessary to establish probable cause are inextricably related to each given set of facts, there are two basic questions pertinent to the determination of probable cause for a search under any set of facts: (1) whether the particular items sought to be seized are sufficiently connected with criminal activity and (2) whether the items are to be found in a particular place. Berner, Search and Seizure: Status and Methodology, 8 Val.U.L.Rev. 471 (1974). If sufficient facts are presented so that a neutral and detached magistrate can make an affirmative response to these questions, probable cause may be presumed to exist thus making the issuance of the search warrant reasonable. Probable cause need not be established by that quantum of evidence necessary for a conviction nor need it be established by evidence which would be admissible at trial. Kinnaird, supra; Spinelli v. U.S., (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. For example, since the enactment of IC 35-1-6-2 probable cause in Indiana may be predicated on the basis of evidence not personally known to the affiant, so long as it is credible hearsay. Madden v. State, (1975) 263 Ind. 223, 328 N.E.2d 727. As pointed out by the Indiana Supreme Court in Madden, 328 N.E.2d at 729:

"Recognizing the dangers inherent in hearsay, however, the Legislature incorporated specific requirements into the statute to assure that the hearsay constituting the probable cause was credible in the mind of the issuing authority...