Locklayer v. State

• Citation: 317 N.E.2d 868,162 Ind.App. 64
• Decision Date: 30 October 1974
• Docket Number: No. 1--1173A205,1--1173A205
• Parties: Robert LOCKLAYER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 868

317 N.E.2d 868

162 Ind.App. 64

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

No. 1--1173A205.

Court of Appeals of Indiana, First District.

Oct. 30, 1974.

William B. Ream, Bloomington, for appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendant-appellant Locklayer was tried by jury and convicted of possession of narcotic drugs, sale of narcotic drugs, and possession of a device used in smoking a dangerous drug. His appeal presents three issues for review:

(1) Whether the trial court erred in overruling his Motion to Suppress.

(2) Whether there was a break in the chain of custody of certain items admitted into evidence.

(3) Whether the jury verdict was supported by sufficient evidence.

The evidence most favorable to the State reveals that on February 4, 1972, James Michael Brown was arrested by the Bloomington Police on charges arising from an alleged forgery. In the course of the interrogations that followed his arrest, Brown was persuaded to assist in several controlled drug purchases from suspected drug traffickers. Appellant was included among those suspected.

At the direction of the police, Brown telephoned Locklayer to ascertain if he had heroin for sale. However, the record does not reveal Locklayer's response. Before going to Locklayer's residence, Brown accompanied by several police officers, attempted to make a controlled drug purchase from one Hardin Lanier, another suspected drug trafficker. According to Brown, this attempt was unsuccessful because Lanier was aware of Brown's arrest and suspected the trap. Lanier suggested that Brown attempt to make his purchase from Joe Williams.

Proceeding to Williams' apartment, Brown successfully completed a controlled purchase of heroin, which resulted in the issuance of a search warrant and ultimately, the arrest of at least two persons on drug related charges.

After completing the Williams' transaction, Brown submitted to a thorough search by the police and was given a marked twenty dollar bill to use in the drug purchase from Locklayer. At appellant's apartment Brown purchased a quantity of drugs from Locklayer. The sale was consummated without incident, but due to Locklayer's apprehension of being 'busted' Brown was required to inject the drug before leaving the apartment.

Upon exiting Locklayer's apartment, Brown was immediately returned to the police station and once again subjected to a thorough search which revealed fresh needle marks on his arm and a folded piece of tin foil containing a powdery residue. The fruits of this search, together with statements made by Brown concerning the transaction with Locklayer formed the basis of an affidavit for a search warrant filed by the State in the early morning hours of February 5, 1972. After determining that probable cause existed, the trial judge issued a search warrant for Locklayer's apartment. Subsequent to the execution of this warrant, the State filed three affidavits charging Locklayer with (1) possession of narcotic drugs, (2) sale of narcotic drugs, and (3) possession of a device used in smoking a dangerous drug. From a judgment entered on the jury verdicts of guilty on all three charges, Locklayer appeals.

ISSUE 1.

Initially Locklayer contends that the trial court erred in overruling his motion to suppress. He maintains that the motion should have been sustained because (1) he was a victim of entrapment and (2) Brown was not a reliable informant under the guidelines of Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

In his motion Locklayer requested suppression of all evidence which the State had indicated it would present because 'The alleged evidence was the product of the entrapment of the defendant.' Following a lengthy debate at the evidentiary hearing on the motion, the trial judge denied Locklayer's request. For reasons stated, such denial was proper.

At the hearing the State contended that it was improper for Locklayer to argue the defense of entrapment at that stage of the proceeding since entrapment is a factual issue to be resolved by the jury and as such not a proper ground for a motion to suppress. Although the State did not brief this point on appeal, we believe it necessary to resolve the question of the propriety of arguing entrapment in a pre-trial motion to suppress.

An examination of Indiana authorities on entrapment fails to disclose any case wherein this issue has been squarely presented. The pertinent authorities do however, uniformly hold that entrapment is a defense which goes to the merits of the charge against the defendant and as such, is a factual issue to be resolved by the jury. Thompson v. State (1972), Ind., 290 N.E.2d 724; Hauk v. State (1974), Ind.App., 312 N.E.2d 92. See also, Smith v. State (1972), Ind., 281 N.E.2d 803; Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641; and Gray v. State (1967), 249 Ind. 629, 231 N.E.2d 793. Since entrapment is a complete defense to the merits of the charges we are unable to discern in what manner, if any, it presents a question of admissibility of evidence. The more logical conclusion is that rather than presenting a question of admissibility of evidence, entrapment presents the proposition that regardless of the evidence, a conviction may not be obtained if the act or acts complained of were improperly instigated by the authorities. A like conclusion was reached by the Colorado Supreme Court when the question confronting us in the case at bar was squarely presented in People v. Patterson (1971), 485 P.2d 494. Therein the court faced an appeal from a lower court ruling that quashed a motion to suppress on the grounds that entrapment was not a proper ground for such a motion. In affirming the lower court's action, the Patterson court declared that defendant's claim that the evidence sought to be suppressed was seized from him by entrapment went to the merits of the charge against him rather than to the admissibility of the evidence. The court reasoned as follows:

'The law is clear that entrapment is a defense which goes to the merits of the charge against a defendant. Gonzales v. People, 168 Colo. 545, 452 P.2d 46; Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. Entrapment does not present a question of admissibility of evidence, but presents rather the proposition that a conviction may not be obtained, no matter what the evidence, where the authorities instigated the acts complained of, and this is generally a question of fact for a jury.' (Emphasis added.)

In light of the foregoing discussion, we are compelled to the conclusion that the substantive issue of the defense of entrapment is a factual matter to be resolved by the jury and is not an appropriate ground for a motion to suppress. To sanction a pre-trial adjudication of the issue of entrapment would amount to an unwarranted and an unnecessary usurpation of the fact-finding function of the jury.

However, closely related to the defense of entrapment, yet clearly distinguishable is an additional rule of probable cause applied by our courts for the protection of the defendant. Under this rule, once the defendant has raised the defense of entrapment it is incumbent upon the State to present evidence establishing that before the transaction alleged to be entrapment was initiated, the State had probable cause for suspecting that defendant was engaged in illegal conduct. Walker v. State, supra; Smith v. State, supra. Although the Federal cases from which the Indiana probable cause requirement was adopted held that the probable cause question was a factual issue for the jury and as such merely one factor which would rebut the defense of entrapment, ¹ from the onset Indiana has approached the probable cause rule as an absolute rule separate and distinct from the entrapment issue and has declared it to be a matter of law for the court's determination. ² Additionally, failure to establish probable cause for suspecting the defendant precludes the State from utilizing the work product of the scheme:

'In the case at bar, even should we differ in our opinions as to whether the offense was conceived and enticed by the agent, there can be no doubt that no evidence was presented to render the defendant suspect of any offense prior to the time the State's scheme was set into motion. Probable cause for 'baiting the trap' was therefore absent, and the work product of the scheme cannot be utilized, thereby condoning and encouraging that which was illegal in the first instance.' (Emphasis added).

Smith v. State, supra, 281 N.E.2d at 806.

Since the probable cause rule arising in an entrapment case is a question of law for the court and since absent probable cause for 'baiting the trap' the State is precluded from utilizing the evidence obtained, it is evident that the probable cause rule arising in an entrapment case is closely analogous to the probable cause requirements in cases dealing with search warrants, arrest warrants, and warrantless searches and arrest. ³

Therefore, it is apparent that although the defense of entrapment does not present a question of admissibility of evidence, the related rule of probable cause does. Accordingly, the probable cause rule may be either resolved in a pretrial motion to suppress, or raised at trial as grounds for challenging the admissibility of evidence obtained through a scheme alleged to be entrapment. If argued at trial it is imperative that the evidence be received outside the presence of the jury and the issue resolved by the trial judge.

In the case at bar, at the conclusion of the evidentiary hearing on the motion to suppress, the trial judge declared that as a matter of law '. . . there were facts and a knowledge in possession of the Police Department which permitted them to set up a controlled buy in this case, and that if there is an issue...