Ludlow v. State

• Citation: 262 Ind. 266,314 N.E.2d 750
• Decision Date: 01 August 1974
• Docket Number: No. 774S140,774S140
• Parties: Donald LUDLOW, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 750

314 N.E.2d 750

262 Ind. 266

Donald LUDLOW, Appellant, v. STATE of Indiana, Appellee.

No. 774S140.

Supreme Court of Indiana.

Aug. 1, 1974.

Rehearing Denied Sept. 23, 1974.

David L. Allison, Indianapolis, for appellant

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

ON PETITION TO TRANSFER

DeBRULER, Justice.

Petitioner, Donald Ludlow, was convicted of possession of metamphetamines in violation of the Indiana Dangerous Drug Act (I.C.1971, 16--6--8--3, being Burns § 35--3333) after a non-jury trial in the Marion Criminal Court, Honorable Harold J. Kohlmeyer presiding. The Third District of the Court of Appeals affirmed his conviction with one judge dissenting in an opinion found at 302 N.E.2d 838. Ludlow has filed his Petition to Transfer in this Court in which he raises several allegations of error. It will not be necessary for us to discuss all the allegations however, since we now grant Ludlow's petition and reverse the conviction on the ground that the trial court erred when it overruled Ludlow's motion to suppress the metamphetamines as being seized in violation of the warrant requirements of the Fourth Amendment.

The evidence elicited on this issue indicates that officers of the Indianapolis Police Department had a house located at 3715 Guion Road under periodic surveillance for possible drug related activities for a period of approximately two weeks prior to the night of January 26, 1972. At about 7:00 p.m. that night Officers Robertson and Brenton received information from an informer known to them who stated that he had just left the Guion Road house where he had observed a quantity of metamphetamines being cut in an upstairs bedroom. The informer also told the police the names of seven people who were in the house at that time.

The officers testified that they attempted to locate one prosecuting attorney and one judge in order to secure a warrant. When they could not locate either of these particular individuals they ceased attempting to get a search warrant, although the existence of other municipal courts with jurisdiction to issue a warrant was known to them. A check of the police computer system, however, revealed that there were outstanding arrest warrants on two of the seven people in the house; one for failure to appear on a traffic summons and a second for rape.

Pursuant to this information Officers Brenton and Robertson proceeded to the Guion Road address. They had not obtained a warrant to search the house. Within one half hour after first receiving the information from their informer the officers knocked on the front door of the house and identified themselves to petitioner Ludlow when he appeared at the door. Ludlow denied the officers entry into the house ¹ and the police broke the door open. One officer arrested petitioner Ludlow and another youth immediately inside the front door. The other officer ran upstairs to a back bedroom, where the informer had told him to proceed, and found the metamphetamines lying on a mirror on a bed in that room.

At his subsequent trial petitioner's objection to the introduction of the metamphetamines as being seized in the course of an unlawful search was overruled by the trial court. We hold today that Ludlow's objections should have been sustained.

It is well established that a judicially issued search warrant is a condition precedent to a valid search and seizure except under a very few, narrowly drawn exceptions, where the exigencies of the situation mandate an immediate response. Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. 'Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.' Agnello v. United States (1925), 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145.

Since it was conceded here that the search and seizure of the drugs was conducted without a search warrant, the burden rested with the State to demonstrate that the police action fell within one of the exceptions to the general rule requiring a warrant. Vale v. Louisiana (1970), 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409; Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133; State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874. The State has introduced no evidence here to indicate that they would come within the 'hot pursuit' exception to the warrant requirement. Hayden v. Warden, Md. Penitentiary (1967), 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. There is no indication that the drugs were then in the process of being removed from the jurisdiction. Chambers v. Maroney (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Stuck v. State (1970), 255 Ind. 350, 264 N.E.2d 611. Neither were the officers responding to an emergency which required immediate action to prevent injury to life or limb. McDonald v. United States (1948), 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153.

The State in its brief does, however, make the assertion that this warrantless entry can be justified on the grounds that the drugs were easily destructible and thus falls into an exception to the usual warrant requirement. The State's argument here misinterprets the scope of that exception. This Court has already rejected the notion that the nature of the items to be seized can alone create automatic exceptions to Fourth Amendment safeguards. State v. Dusch (1972), Ind., 289 N.E.2d 515. Moreover, there is no evidence here which would indicate in any way that the people in the house were in the process of destroying the drugs, or were even aware that a raid was imminent. The rationale for the clearly defined exception to the warrant requirement in cases of destruction of evidence is based on the need for quick action because the evidence is actually in the process of being destroyed or is about to be destroyed. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. What the State asks here would result in an extension of the exception far beyond the bounds of its rationale.

The State's main justification for the seizure without a warrant is that the existence of the drugs was a result of a plain view discovery while the police were in the process of executing a valid arrest warrant. Evidence at the hearings and trial below clearly establish that the existence and location of the drugs were known to the police prior to the raid and that the search for and seizure of the drugs represented one of the main, if not the dominant, purpose of the entry. The State's position, therefore, would have us hold that although there was an absence of exigent circumstances, the existence of the valid arrest warrant by itself created an exception to the search warrant requirement, even where the police knew of the drugs and intended to conduct a search for them at their entry.

The United States Supreme Court has several times held that these facts do not create an exception to the requirement for a search warrant. In Trupiano v. United States (1948), 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, the Court found that the seizure of contraband in plain view as a result of a valid arrest was unlawful since it was accomplished without a search warrant in a situation where the police previously knew the location of the contraband, and where there was no showing of exigent circumstances at the time of seizure. The Court held there that the existence of a valid arrest does not per se call for an abolition of the search warrant requirement.

'But there must be something more in the way of necessity than merely a lawful arrest. The mere fact that there is a valid arrest does not ipso facto legalize a search or seizure without a warrant. (Cases cited) Otherwise the exception swallows the general principle, making a search warrant completely unnecessary wherever there is a lawful arrest.' 334 U.S. at 708, 68 S.Ct. at 1234.

More recently the court dealt with a similar situation in its opinion in Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, and again stressed that the requirement of a search warrant cannot be abrogated to fictions surrounding the plain view doctrine:

'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 second limitation (on the plain view doctrine) is that the discovery of evidence in plain view must be inadvertent.' (Emphasis added.) 403 U.S. at 466, 469, 91 S.Ct. at 2038, 2040.

In the light of Trupiano and Coolidge it is apparent that the plain view doctrine cannot be held to justify the warrantless seizure of the drugs in this case. The discovery of the metamphetamines was hardly fortuitous or inadvertent, as would be required for a proper application of the plain...