Machlan v. State

• Decision Date: 01 May 1967
• Docket Number: No. 31014,31014
• Citation: 248 Ind. 218,225 N.E.2d 762
• Parties: Thomas MACHLAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 762

225 N.E.2d 762

248 Ind. 218

Thomas MACHLAN, Appellant, v. STATE of Indiana, Appellee.

No. 31014.

Supreme Court of Indiana.

May 1, 1967.

Stevens, Wampler, Travis & Feagler, Plymouth, for appellant.

John J. Dillon, Atty. Gen., Michael V. Gooch, Deputy Atty. Gen., for appellee.

MOTE, Judge.

Appellant, eighteen (18) years of age, was charged by affidavit and found guilty by a jury 'with carrying one Frontier Model Derringer pistol and one Browning Automatic .25 caliber revolver in a vehicle, to-wit: a 1961 Chevrolet Corvair, without having a license to carry such weapons'.

A pre-sentence investigation by the Probation Officer was ordered and made and hearing was held thereon. On April 28, 1966, the court pronounced judgment on the verdict and sentenced Appellant to the Indiana State Farm for a period of one (1) year and that he pay the costs of the action.

The trial court overruled and denied a motion for a new trial, which resulted in this appeal. Appellant assigns several errors for our consideration, but he relies almost exclusively upon his constitutional protection againt unreasonable search and seizure provided as follows:

'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.' Article I, Section 11, Constitution of Indiana; Fourth Amendment to the Constitution of the United States. (The provisions in both Constitutions read the same.)

Through the proceedings in the trial court, by motion to suppress evidence--hearing and adverse ruling thereon, motions for a directed verdict at the close of the State's evidence and at the close of all of the evidence, which motions were overruled, and by objections to the admission of evidence, the Appellant has preserved the error which is the bedrock of this appeal. It seems incumbent upon us, in order to clarify the conclusion we have reached as a matter of law, to set forth herein a brief re sume of the significant evidence as it appears in the record.

At approximately 3:00 o'clock P.M. on March 1, 1966, Appellant was operating an automobile which was involved in an intersection collision with another motor vehicle in the City of Plymouth, as a result of which there were personal injuries to the parties involved and particularly to Appellant, as well as property damage to each of said vehicles.

Officer Forest McKee of the Plymouth Police Department, who investigated the collision, called two automobile repair shops to come for the vehicles so that they might be removed from the streets. Bordner's Body Shop, perhaps with indicated approval of the Appellant, removed his vehicle, which was damaged so extensively that part of it had to be placed on a dolly, to its place of business and stored it on its salvage yard. Appellant was removed to Parkview Hospital in said City. Officer McKee testified in substance:

'He was at the scene (of the collision) 5 minutes or a little longer. Then I went to the hospital emergency room. I saw the defendant there. Mr. Machlan was on the emergency table. I told him I was going--he was arrested. I was going to issue a traffic ticket * * * I went in a connecting room and at a desk and there is where I made out the ticket. I then told defendant he could come to the police station after he was released to sign the ticket.'

Mr. Wilbur Bordner, who removed the vehicle Appellant had been operating, testified that in order to protect them, it was necessary to remove personal belongings from the vehicle and that while he was doing so, Officer Watson of the Plymouth Police Department came upon the scene. It appears that said Officer inquired if he, Bordner, had found any guns and upon receiving a negative reply, Officer Watson began directing Borner in the search for guns. One was found in a case on the floor below the driver's seat and another gun between the seats under the carpet. It is evident that neither gun was visible as a gun to one who was an onlooker. These guns were confiscated by the Officer and later offered and admitted into the evidence at the trial, over the objections of the Appellant.

Although it appears there was ample time to procure a search warrant under the existing facts shown by the record, upon a showing of probable cause, none was obtained prior to Officer Watson's search of the vehicle in question, though the medium of a third person (Mr. Bordner) without the authority of Appellant. If Mr. Bordner were a bailee, which Appellant's counsel disclaims, the bailment was so limited that the bailee could not have authorized the search made under the circumstances above related.

The State contends, however, that there was no search and practically has conceded that if a search were made, a warrant therefor would have been necessary. Thus the question resolves itself into whether there was a search. The State urges that Officer Watson 'merely observed the salvage yard owner find the guns. Where there is no search, there can be no problem of unreasonable search and seizure'. The record does not support the State's contention in the latter regard. The undisputed evidence discloses for a certainty that Officer Watson gave directions for the search, as a result of which the guns in question were found, confiscated and later admitted into the evidence over the objections of the Appellant.

While it may be speculated that Officer Watson may have been able to stand by and possibly could have observed Mr. Bordner remove the two guns from the vehicle, in the ordinary course of cleaning out and storing the same along with other personal property, this is not what occurred. Instead, the Officer took charge and gave instructions to Mr. Bordner, thus placing himself in the position of a principal making the search through the agency of Mr. Bordner.

In its brief, the State maintains that 'there was no 'search' within the legal concept of unreasonable search and seizure'. This conception is not supported by the authorities which it cites, but on the other hand, as we view such authorities, they actually support Appellant's contentions.

McAdams v. State (1948) 226 Ind. 403, 81 N.E.2d 671, cited by the State involved two occasions. On the first, it was held that there was no search at all 'illegal or otherwise, or, if there was, that appellant was prejudiced in any way'. On the second occasion, the search without a warrant definitely was consented to by appellant, who '* * * told them to go ahead and search; that they would not find anything'. McAdams v. State, supra, also states that:

'There may be a legal search without a warrant. A man may waive his constitutional right against search and seizure by consenting thereto, and if he does so knowingly and freely and without coercion he cannot object to the use of evidence obtained upon such search.' (Citations)

Inasmuch as Appellant in the case at bar gave no consent to search, McAdams v. State, supra, does not apply to the State's contention.

McCoy v. State (1960) 241 Ind. 104, 170 N.E.2d 43, also cited by the State, involved the receiving of stolen goods by the mother of an 11-year old son, Max Allsup, and another boy 9 years of age, who had broken into a F. W. Woolworth store and stolen certain merchandise and thereafter took it to the said mother's home,...