Manning v. State

• Decision Date: 20 February 1984
• Docket Number: No. 3-783A233,3-783A233
• Citation: 459 N.E.2d 1207
• Parties: Denver C. MANNING, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1207

459 N.E.2d 1207

Denver C. MANNING, Appellant, v. STATE of Indiana, Appellee.

No. 3-783A233.

Court of Appeals of Indiana Third District.

Feb. 20, 1984.

Ted A. Waggoner, Rochester, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Following a jury trial, Denver Manning was convicted of four counts of receiving stolen property, ¹ a class D felony. Manning appeals, raising the following issues: ²

(1) Whether the evidence upon which Manning's convictions were based was obtained as a result of an illegal search;

(2) Whether the trial court impermissibly commented upon Manning's right not to testify against himself by giving a preliminary instruction which outlined the proceedings and noted that Manning had the option of calling witnesses and presenting evidence; and

(3) Whether the trial court erred in giving Manning an aggravated sentence and in ordering that the sentence on one count be served consecutively with the sentences on the other three counts.

Affirmed as to three convictions; reversed as to one conviction and remanded with orders to vacate Manning's conviction and sentence on that count.

I. Legality of Searches

On February 15, 1981, Manning was stopped and taken to the Fulton County jail on traffic violations. After Manning had been released, Officer Paul Rayl discovered Manning's wallet and checkbook on the restroom floor. When he went to the M & S Salvage Yard, where Manning was staying, to return the wallet and checkbook, Officer Rayl saw a 1979 maroon Oldsmobile, without a license plate, parked on the property. Officer Rayl was suspicious because he had previously received information that the M & S Salvage Yard handled stolen automobiles, so he shined his flashlight on the windshield and wrote down the vehicle identification number which was imbedded in the dashboard. The next day, Officer Rayl ran a computer check and determined that the Oldsmobile had been stolen. After Rayl verified the theft with the Chicago Police Department, he returned to the salvage yard but did not see the automobile. Rayl obtained a search warrant which provided, in pertinent part:

"You are, therefore, commanded, in the name of the State of Indiana ... to enter into and upon the real estate utilized by M & S Salvage for its salvage operations, ... and to then and there diligently search for the vehicle described in the Affidavit for Search Warrant, including all of the real estate utilized by M & S Salvage for its salvage operation and also including any buildings or structures on said real estate wherein the vehicle described in the Affidavit for Search Warrant might be sequestered and bring the same, or any part thereof found on said search, forthwith before me at my office to be disposed of according to law."

(Record, p. 4). Accompanied by other officers, Rayl served the search warrant on Marsha Lee Reed and asked her for a key to a large metal storage building on the premises. Reed did not have a key, so the officers cut the padlock on the door of the shed, which was between two and four-tenths of a mile from where Rayl had seen the Oldsmobile. Once inside the shed, Rayl looked for the Oldsmobile ³ while the other officers checked the license plates and VIN numbers of the vehicles in the building, opening the doors of the vehicles and looking under the hoods. The officers ran a computer check and determined that one of the vehicles had been stolen. They examined tools and papers in the shed, photographed the inside of the building and then secured the area because the weather was too bad to search further. The next day, Rayl obtained a second search warrant, based on the information gathered during the search. That warrant provided, in pertinent part:

"You are, therefore, commanded, in the name of the State of Indiana, ... to enter into and upon the real estate utilized by M & S Salvage for its salvage operations ... and to then and there diligently search for any stolen vehicles or other items of stolen property, said search to include all real estate utilized by M & S Salvage for its salvage operations and including any buildings or structures on said real estate wherein any stolen vehicles or other items of stolen property might be sequestered, and bring the same or any part thereof found on said search, forthwith before me at my office to be disposed of according to law."

(Record, p. 9).

On February 17, 1981, Rayl and the other officers performed a search pursuant to the second warrant and seized various articles. Subsequently, additional search warrants were obtained and executed. Prior to trial, Manning moved to suppress this evidence, arguing that: first, the actions of Officer Rayl in obtaining the VIN number constituted an illegal search; second, the first warrant did not set forth probable cause for the issuance of the warrant; and third, the search performed pursuant to the first warrant exceeded the scope of that warrant, therefore, the second warrant was invalid because it was based on illegally obtained information. Manning's motion was denied. Manning was tried on twenty counts, contained in two informations. The trial court granted a directed verdict on four counts; the jury found Manning guilty on four counts and not guilty on the twelve remaining counts. The counts of which Manning was convicted involved a 1975 Ford F350 truck owned by Patten Industries, a 1978 axle dump trailer, reported stolen on October 6, 1980, a 1969 Hendrickson truck tractor, and a 1978 Ford pick-up truck. ⁴

On appeal, Manning contends that: (1) Officer Rayl's initial actions constituted an illegal search; (2) the search performed on February 16 was illegal because it exceeded the scope of the first warrant; and (3) the subsequent warrants were invalid because they were based on illegally obtained information. He argues that his convictions should, therefore, be reversed.

Our review of the record reveals that Manning lacks standing to challenge the seizure of the 1969 Hendrickson tractor and the 1978 Ford pick-up. The Hendrickson tractor was found on U.S. 31 near Argos, Indiana. The Ford pick-up was found in two parts: the cab was pulled out of the Tippecanoe River; the chassis was owned by another person at the time it was seized. Where a defendant has no proprietary or possessory interest in the property being searched or seized, he lacks standing to challenge that search or seizure. See Hope v. State (1982), Ind., 438 N.E.2d 273, 274; Haller v. State (1983), Ind.App., 454 N.E.2d 76, 80-81. Manning has not shown a proprietary or possessory interest in these items or in the places where they were found; therefore, he cannot challenge the seizure of them.

Another of Manning's convictions was based on a stolen 1975 Ford 350 truck which was originally owned by Patten Industries. At trial, Frank Knez and Reginald Blouin testified regarding Patten's ownership of the vehicle. Knez and Blouin identified photographs of the truck and items which were in the truck when it was stolen. Those photographs were admitted into evidence without any objection by defense counsel except counsel's objection that the witness had not properly identified two of the photographs. When a pre-trial Motion to Suppress has been denied, error is not preserved unless a proper objection is made when the evidence is introduced at trial. Pointon v. State (1978), 267 Ind. 624, 372 N.E.2d 1159; Nelson v. State (1982), Ind.App., 436 N.E.2d 1153. Furthermore, a party may not assert on appeal a different ground for an objection than that given at trial. Ralston v. State (1980), Ind.App., 412 N.E.2d 239, 247. By failing to make a specific timely objection based on the legality of the search, Manning has waived his right to seek our review of this issue as it relates to the admission of this evidence. ⁵

The final conviction involves a 1978 axle dump trailer. Our review of the record indicates that this property was found in the metal shed on February 16 and is described in the affidavit in support of the second search warrant. When a photograph of the trailer was offered into evidence, a specific and timely objection was made, on the grounds that the evidence was the product of an illegal search.

The State contends that the search conducted in the metal shed on February 16 was justified under the "plain view" doctrine. This doctrine, which is generally applied to seizures of property, was explained by the United States Supreme Court in Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, as follows:

"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 ... Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." (Citations omitted).

Our Supreme Court has likewise explained the doctrine:

"Pursuant to the doctrine, a police officer rightfully occupying a particular location who inadvertently discovers items of readily apparent criminality may properly seize the items; evidence so seized is both admissible as evidence and usable for derivative purposes, for the seizure is not regarded as the product of a search within the meaning of the Fourth Amendment...."

Lance v. State (1981), Ind., 425 N.E.2d 77, 78 (citations omitted). This explanation is premised on the rule that what is in plain view is not the product of a search. Alcorn v. State (1970), 255 Ind. 491, 265 N.E.2d 413. However, Indiana courts have emphasized that the items must be of "readily apparent" criminality. Lance, supra;...