Ludlow v. State, 2-573A110

Decision Date30 October 1973
Docket NumberNo. 2-573A110,2-573A110
Citation302 N.E.2d 838
PartiesDonald LUDLOW, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

David L. Allison, Allison & Barnhart, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., Indianapolis, for appellee.

SHARP, Judge.

On January 27, 1972, Appellant was charged by way of affidavit of a violation of the Indiana Dangerous Drug Act, IC 1971, 16-6-8-2, Ind.Ann.Stat. § 35-3332 (Burns 1972 Supp.), as follows:

'* * * that Donald Ludlow late of said County and State, on or about January 26, 1972, at and in the County and State aforesaid, did then and there unlawfully possess and have on his person or under his control a quantity of Dangerous Drugs, to-wit: Methamphetamine that were not dispensed upon a prescription of a physician, dentist, veterinarian or Osteopathic physician licensed by law to prescribe such drug, * * *'

To this charge the Appellant entered a plea of not guilty and in a bench trial was found guilty and sentenced to imprisonment for one (1) to ten (10) years. We will consider the issues properly presented on this appeal from that sentence.

I.

On June 9, 1972 the Appellant filed a written motion to suppress and the trial court held an evidentiary hearing on it and at the conclusion thereof overruled the same. Said motion to suppress all of the evidence seized by police officers on January 26, 1972 resulted from a warrantless search of a house at 3715 North Guion Road in Indianapolis, Indiana.

At the hearing on that motion to suppress a narcotics officer of the Indianapolis Department testified:

'Between 7 and 10 P.M. on the evening of January 26, 1972, Officer Brenton received information from a reliable informant, upon whose information convictions were previously obtained, that there were drugs at a specified place in a house located at 3715 Guion Road in Indianapolis, Marion County, Indiana. Information concerning the identity of certain people who were in the house was also received from the informant. Arrest warrants for two of the people alleged to be in the house were outstanding. One of the individuals was charged with rape. A half-hour after the informant left the house and told Officer Brenton who was there. Officer Brenton went to the house at 3715 Guion Road to make an arrest. He knocked on the front door, identified himself to Donald Ludlow, and was denied entry. He knew at that time that two arrest warrants for people in the house were outstanding. He was denied entry and forced his way in. Then he called 'police' a few times and went directly to a mirror in the upstairs southside bedroom where his informant told him to go, and the drugs were there. Donald Ludlow was known to be a resident of the house and was at the scene at the time. The information that the informant gave Officer Brenton turned out to be accurate with respect to the location of the drugs and the people that were in the apartment. Donald Ludlow was one of at least seven people who were arrested at the scene.'

The Appellant properly renewed his objection to the admission of the evidence which was the subject of said motion to suppress.

During the trial another officer of the Indianapolis Police Department testified to substantially the same events that had been described in the hearing on the motion to suppress. This second officer testified in part, that 'approximately one-half hour earlier we received information from a confidential and reliable informant who was reliable in the past on arrests and convictions that there had been drugs brought in from Gary, Indiana and were taken to the 3715 Guion Road address. The drugs were there at that time upstairs in the south bedroom on a mirror and were being cut at this particular time.' An unsuccessful attempt was made by the police to contact a municipal judge and a deputy prosecutor to obtain a search warrant but they could not be located. Said officer also said that there were arrest warrants for two persons at said address for offenses, one warrant was for rearrest on a traffic offense and one was for rape. These two officers proceeded to that address, knocked on the door which was opened by Appellant and one other. When the police officers identified themselves Appellant and the other person shut the door. At that time they were refused entry these police officers heard running inside the house and were afraid the drugs would be destroyed. Both of the persons for whom the police had arrest warrants at that time were present at that address when the police arrived. After being refused entry, the police forced open the door. One officer called 'Police' twice before entry. One officer arrested the Appellant while the other proceeded directly to the room on the second floor where the informant had located the drugs. Upon entering that room the officer observed a mirror lying on a mattress on a pile of blankets which had a white powdery substance lying on it. Expert testimony identified the substance as methamphetamine. When placed under arrest and advised of his constitutional rights Appellant said he lived at 3715 North Guion Road and Appellant was the only the present at the time of the incidents here described who gave his address as 3715 North Guion Road.

In regard to the motion to suppress, we must determine if the evidence seized was properly admissible under these facts, when viewed in a light most favorable to the Appellee-State.

It is correct that the officers were properly in the house to execute arrest warrants and were entitled under our statutes to use reasonable force to enter for that purpose. IC 1971, 35-1-19-6, Ind.Ann.Stat. § 9--1009 (Burns 1972 Supp.)

Half an hour before the officers arrived, they had received information from a reliable informant that at least seven persons were in the house. The officers then determined that two of these persons were wanted on arrest warrants. One warrant was a rearrest warrant for traffic offenses (appellant) and the other warrant was for rape (Robert E. Brown).

At the time of their entry into the house, the police officers 'heard running' inside the house. The defendant and another were taken into custody near the front door. The officers knew that at least five other persons, including the persons wanted on the warrant for rape, were somewhere else in the house.

68 Am.Jur.2d, Searches and Seizures, § 94 (1973) at page 749, states 'And the Chimel decision (Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), limiting the scope of a search incident to a valid arrest to the area within the arrestee's control.) has been construed not to prevent a search incident to an arrest from extending to rooms of a house other than the room where the arrest is made, where the arresting officers have reasonable cause to believe, based on facts available at that time, that additional persons might be on the premises and might be involved in the offense charged or might pose a security risk for the officers. Upon making a search for additional persons, the 'plain view' doctrine applies and justifies the seizure of evidence falling into the officers' plain view, although the Chimel doctrine would have prevented any such search for the sole purpose of discovering evidence,' citing People v. Block, 6 Cal.3d 239, 103 Cal.Rptr. 281, 499 P.2d 961 (1971), (which held where officers discovered six or seven persons in the downstairs, portion of a house with evidence of marijuana smoking on the premises, and lights illuminated the stairway and upstairs hall, the officers were justified in searching the upstairs for other participants in a 'pot party'.)

Robertson, P.J., speaking for the First District of this court in Presley v. State Ind.App., 284 N.E.2d 526, at pages 529-530 (1972) said:

'What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification--whether it be a warrant for another object, hot pursuit, search incident to a lawful arrest, or some other legitimate reason for being present unconnected with a search against the accused--and permits the warrantless seizure.'

In the case, the defendant was arrested in a hallway and while looking in an adjoining room for his accomplice, police found a camera which was in 'plain view' and which was subsequently held properly admissible in a prosecution for burglary.

The fact that here the officers had exact prior information as to the location of the drugs does not vitiate the plain view doctrine and Presley v. State, supra, is determinative of this issue.

Therefore, the drugs seized were properly admissible into evidence and the trial court did not err in overruling Appellant's motion to suppress.

II.

At the close of Officer Robertson's testimony on behalf of the State at the trial of this case, the Appellant made an oral motion that the State produce its secret informant at trial for purposes of cross-examination. The trial court held an evidentiary hearing on said motion. At said hearing Officer Robertson testified in substance:

'The informant is still being used. Other cases are still pending which arose from information given by him. If his name is revealed there are other people whose freedom would be jeopardized, and the informant's safety and welfare would also be jeopardized. Furthermore, bringing the informer into court to testify would jeopardize convictions in many pending cases. Moreover, at least one of the people against whom cases are now pending has killed a police informant.'

The trial court denied said motion to produce.

In Gordon v. United States, 438 F.2d 858 (5th Cir. 1971), the Fifth Circuit Court of Appeals defined an...

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    • November 3, 1980
    ...376 N.E.2d 542; Phillips v. State (1974), 160 Ind.App. 647, 313 N.E.2d 101. Nor must the possession be exclusive. Ludlow v. State (1973), Ind.App., 302 N.E.2d 838, 843, rev'd on other grds, 262 Ind. 266, 314 N.E.2d 750. Non-exclusive, constructive possession is sufficient. See Martin v. Sta......
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