McAllister v. State, 1--473A57

Docket NºNo. 1--473A57
Citation306 N.E.2d 395, 159 Ind.App. 340
Case DateFebruary 07, 1974
CourtCourt of Appeals of Indiana

Page 395

306 N.E.2d 395
159 Ind.App. 340
Jack Arnold McALLISTER, Defendant-Appellant,
STATE of Indiana, Plaintiff-Appellee.
No. 1--473A57.
Court of Appeals of Indiana, First District.
Feb. 7, 1974.

[159 Ind.App. 341] Harold G. Barger, George W. Barger, Barger & Barger, Shelbyville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

Page 396

ROBERTSON, Presiding Judge.

The defendant-appellant (McAllister) is appealing his being found guilty by a jury of possession of less than 25 grams of a dangerous drug. The primary error asserted in McAllister's overruled motion to correct errors concerns the purported illegal search of McAllister's person.

A summary of the facts reveal that the Sheriff of Shelby County, in concert with other police agencies, utilized an informer and electronic surveillance to secure information relating to drug activity in and about the Blue River Inn in Shelbyville. A probable cause affidavit based upon the gathered information was submitted resulting in a search warrant. That warrant, omitting the caption and formal parts, read:

'WHEREAS, there has been filed with this Court probable cause affidavit in support of a search warrant executed by Norman G. Murnan requesting a warrant for search and seizure; and,

WHEREAS, the Court upon examining same now finds that probable cause exists for the issuance of said warrant for search and seizure, now commands in the name of the State of Indiana with the necessary and proper assistance of any Constable, Sheriff, or State Police Officer to enter into and upon the following described premises, to-wit: the Blue River Inn located at 23 West Jackson Street, City of Shelbyville, State of Indiana, and there diligently search for the following items of evidence: dangerous drugs of marijuana, mescaline and LSD, and narcotic drugs of heroin and any and all devices used for the purpose of inducing the same into a human body, and that you bring the same or any part thereof found in such search forthwith to my office to be disposed of by law.'

[159 Ind.App. 342] During the ensuing raid on the Blue River Inn all of its patrons were searched, including McAllister. After being told to empty his pockets McAllister was patted down by a Trooper. A packet of weedlike material, subsequently identified as marijuana, was discovered in the pocket of the jacket McAllister was wearing. The police had no information connecting McAllister to the Blue River Inn and the drug traffic therein.

The thrust of McAllister's argument is that the officers exceeded the scope of the search warrant. It is the state's position that the warrant allows search of the persons within the place described in the search warrant, and the probable cause affidavit, which sought permission to search patrons of the Blue River Inn, is an integral part of the warrant, therefore, the officers acted within their scope of authority.

For reasons stated hereafter, we are of the opinion that the search warrant did not give authority for the search of McAllister's person. (The facts indicate that the only available theory justifying the searching of McAllister is from authority contained in the warrant....

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6 cases
  • Mills v. State, 2-277A45
    • United States
    • Indiana Court of Appeals of Indiana
    • September 5, 1978
    ...into the body of the search warrant in compliance with the above statute, is a part of the search warrant. McAllister v. State (1974), 159 Ind.App. 340, 306 N.E.2d 395, 397. Therefore, the items to be seized are adequately described. See United States v. Freeman, 532 F.2d 1098, 1100 (7th Ci......
  • Hopkins v. State, 1--574A88
    • United States
    • Indiana Court of Appeals of Indiana
    • February 24, 1975
    ...the statute if the affidavit is referred to in the warrant and attached to the warrant. See: McAllister v. State (1974), Ind.App., 306 N.E.2d 395. Hopkins also says the warrants granted discretion to the police in that officers seized two pairs of shoes, instead of [163 Ind.App. 280] one pa......
  • Cutter v. State, 49A02-9408-CR-468
    • United States
    • Indiana Court of Appeals of Indiana
    • February 15, 1995
    ...the search of a person must be as specific as a warrant pertaining to a particular property or location. McAllister v. State (1974), 159 Ind.App. 340, 306 N.E.2d 395. That is, a warrant must identify with specificity the person to be searched. Baker v. State (1983), Ind., 449 N.E.2d 1085. I......
  • Baker v. State, 981S244
    • United States
    • Indiana Supreme Court of Indiana
    • June 21, 1983
    ...was defective because the probable cause affidavit was not incorporated into the search warrant contrary to McCallister v. State, (1974) 159 Ind.App. 340, 306 N.E.2d In McCallister, the Court of Appeals held a search warrant invalid for its failure to contain a copy of the probable cause af......
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