Madden v. State
| Decision Date | 03 June 1975 |
| Docket Number | No. 773S133,773S133 |
| Citation | 263 Ind. 223,328 N.E.2d 727 |
| Parties | Melvin E. MADDEN, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
C. Jack Clarkson, Rushville, Don Hubert Wickens, Greensburg, for appellant; James K. Gaynor, Greensburg, of counsel.
Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of murder in the second degree and sentenced to imprisonment for a term of not less than fifteen years nor more than twenty-five years. The conviction rests upon the validity of a search warrant which was predicated upon a purported showing of probable cause by an affidavit based upon hearsay information, rather than upon facts within the knowledge of the affiant. The State has acknowledged in oral argument that the evidence requisite to a valid conviction of the defendant stems from the search made upon the authority of the warrant in question, in that such evidence was obtained, either in that search or in subsequent searches that would not have been made but for evidence obtained in that search. We, therefore, are not faced with a situation where the evidence, although erroneously admitted, was cumulative only and possibly harmless.
Although probable cause is preferably to be shown by facts within the personal knowledge of the affiant, under our statute a warrant may, nevertheless, be based upon credible hearsay. In such cases, however, the requirements of the statute must be strictly adhered to. We have determined that in this case there was not such an adherence and that as a consequence, the finding of probable cause could only have been based upon the acceptance, by the issuing authority, of the conclusions drawn by the affiant from the information supplied to him by others, rather than upon the conclusions of the issuing authority drawn by him from such information but, nevertheless, independently of the conclusions of the affiant. These conclusions related both to the credibility of the affiant's informants and to the correctness of matters related to him and to other persons. As a consequence, we must reverse this conviction.
Article 1, § 11 of our State Constitution provides that search warrants shall be issued only '* * * upon probable cause, supported by oath or affirmation * * *.' Prior to the enactment of the statute above mentioned, being IC 35--1--6--2, Burns § 9--602, 1 the probable cause requirement had to be predicated upon facts then in the knowledge of the affiant and not upon information not personally known to him. Rohlfing v. State (1949), 227 Ind. 619, 88 N.E.2d 148; McCurry v. State (1967), 249 Ind. 191, 231 N.E.2d 227. The statute has greatly liberalized the requirements for issuing such warrants by permitting the probable cause to be grounded upon information based upon credible hearsay. 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 and not merely in the mind of the affiant. These requirements are specific and simple and were designed to assure that the determination of credibility can and will be that of the issuing authority, made independently of the judgment of the affiant. The goal is that warrants be issued only upon probable cause, shown preferably by facts but in any event by information that is believed to be reliable. The determination of probable cause cannot be made without first determining the likelihood of correctness of such information, and this determination must also be made by the issuing authority rather than merely by the affiant.
To assure that those warrants issued upon 'information,' rather than upon hard facts, are issued only upon reliable information, supplied by a credible person, the statute requires the affiant to supply the issuing authority with the following information:
(a) Affirmative allegations that the credible person spoke with personal knowledge of the matters contained therein.
(b) The facts within the personal knowledge of the credible person.
(c) The facts within the affiant's knowledge as to the credibility of the credible person.
It will be observed that requirement (a) calls for the conclusion of the affiant, but that requirements (b) and (c) call for facts. It is from these facts that the issuing authority will draw his independent conclusions as to (1) the credibility of the person who supplied the information to the affiant and (2) whether or not such person supplied such information from facts within his personal knowledge. The function of the affiant in this situation is primarily one of relaying factual information from the person who has personal knowledge of it to the person who is to make the 'probable cause' determination. The judgments are to be those of the issuing authority and not merely those of the seeker of the warrant. To require less would be to eliminate the judgment of the issuing authority, which would destroy the constitutionality of the procedure. '* * * probable cause must be determined by a 'neutral and detached magistrate,' and not by 'the officer engaged in the often competitive enterprise of ferreting out crime." Spinelli v. United States (1969), 393 U.S. 410, 415--416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637, 643.
We turn now to the affidavit upon which the determination of probable cause was made, to determine if it enabled the issuing authority to make the determination upon his own judgment, independently of the judgment or opinion of the affiant.
'AFFIDAVIT
'Jon Oldham, of Greensburg, Indiana, swears that he believes and has good cause to believe that certain items, to-wit:
'1 Millers Falls 7 1/4 portable electric saw Model SP 2075
'1 Remington chain saw, model SL9, serial number RD3666, color red and white
'1 25 foot Unico green nylon garden hose
said items being taken in a burglary which occurred on the 11th day of June, 1971, are concealed in or about the house of Melvin E. Madden, Jr., 512 Bennett Street, Greensburg, Indiana, situate in the County of Decatur, State of Indiana. That the facts and information constituting the probable cause are as follows:
At the outset, it will be observed that the affiant does not purport to have personal knowledge of the matters purporting to give rise to probable cause for issuance of the warrant. He commences by alleging that he believes and has good cause to believe certain facts. We do not question his belief, nor do we question his good faith in so believing, but the issue is whether or not the affidavit contained the factual allegations required by the statute--allegations which, assuming them to be true, would warrant the issuing authority, independently of the affiant's beliefs, also to arrive at the conclusion that probable cause does, in fact, exist. To make this determination, we must look solely to the affidavit to determine (a) that the informant or informants spoke with personal knowledge of the facts purporting to give rise to probable cause--not that they spoke from beliefs or opinions; (b) the facts within the personal knowledge of the affiant's informant or informants--not what he or they believe, but what they know, and (c) the facts within the personal knowledge of the affiant as to the credibility of his informant or informants--not what he believes concerning such credibility.
The second paragraph of the affidavit sets forth the information upon which the issuing authority was bound to act, that is the facts known to the affiant concerning the credibility of his informant or informants and the facts reported to him by them. Does it fulfil the...
To continue reading
Request your trial
-
State v. Alger
... ... 1972) (double hearsay approved but Aguilar test was not met); State v. Oropeza, supra, (double hearsay permissible in Idaho but Aguilar standard was not met at each link); 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.3 (1978); Moylan, Supra; cf. Madden v. State, 263 Ind. [100 Idaho 679] ... 223, 328 N.E.2d 727 (1975) (affiant may rely on hearsay but informant may not). Regarding the first hearsay link, reliance on the narcotics agent, both Aguilar prongs are met. The credibility prong is satisfied by the affiant's status as a law ... ...
-
State v. Oropeza
...Cohn, 30 Cal.App.3d 738, 106 Cal.Rptr. 579 (1st Dist.1973); United States v. Roth, 391 F.2d 507 (7th Cir. 1967). But cf. Madden v. State, Ind., 328 N.E.2d 727 (1975).11 See United States v. Smith, 462 F.2d 456 (8th Cir. 1972); United States v. Carney, 328 F.Supp. 948 (Del.1971), affmd. 455 ......
-
Powers v. State
...of the credible person. (c) The facts within the affiant's knowledge as to the credibility of the credible person.' Madden v. State, (1975) 263 Ind. 223, 226, 328 N.E.2d 727." The affidavit is found in Issue I. There, Officer Croft related that the informant spoke with personal knowledge fr......
-
Mills v. State
...within his personal knowledge as to the credibility of the informant. Strict compliance with the statute is required. Madden v. State (1975), Ind., 328 N.E.2d 727, 728. The "informant" referred to by Mills is the unnamed person who acted the role of buyer in the controlled buy arranged on t......
-
The Broken Fourth Amendment Oath.
...(532.) Gwinn v. State, 166 N.E. 769, 770 (Ind. 1929). (533.) Rohlfing v. State, 88 N.E.2d 148, 150 (Ind. 1949). (534.) Madden v. State, 328 N.E.2d 727, 728-29 (1975) (finding hearsay constitutional because the relevant statute insisted upon reliable hearsay only and banned double hearsay), ......