McGowan v. State

• Citation: 156 Ind.App. 344,36 Ind.Dec. 631,296 N.E.2d 667
• Decision Date: 31 May 1973
• Docket Number: No. 2--872A49,2--872A49
• Parties: Randolph McGOWAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 667

296 N.E.2d 667

156 Ind.App. 344

Randolph McGOWAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--872A49.

Court of Appeals of Indiana, Second District.

May 31, 1973.

Rehearing Denied June 26, 1973.

Transfer Denied Sept. 7, 1973.

Frederick J. Graf, of Martz, Beattey, Hinds & Wallace, Indianapolis, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., John McArdle, Deputy Atty. Gen., for plaintiff-appellee.

SULLIVAN, Judge.

Defendant-appellant McGowan was tried upon two counts before the court without a jury. (Count 1--violation of the 1935 Firearms Act, IC 1971, 35--23--4--3, Ind.Ann.Stat., § 10--4736 (Burns 1972 Supp.), i.e., unlawful possession of a pistol. Count 2--violation of the 1935 Narcotics Act, IC 1971, 35--24--1--2, Ind.Ann.Stat., § 10--3520, (Burns 1972 Supp.), i.e., unlawful possession of marijuana.) McGowan was found not guilty on Count 1 but was convicted on Count 2 and was sentenced from 2 to 10 years imprisonment. A belated amended motion to correct errors was overruled.

The evidence most favorable to the State revealed that on March 6, 1971, Indianapolis Police detective Byrd received a 'tip' concerning a burglar by the name of 'Booby'. Detective Byrd searching for the suspect knocked at the door of an apartment at 2234 North Central Avenue which was occupied by the tenant William Patton, by McGowan and by another. Patton opened the door and through the open doorway Byrd observed McGowan remove a pistol from his person and lay it on a nearby table. McGowan was arrested for violation of the 1935 Firearms Act, advised of his rights and taken to Police Headquarters.

At the Police Headquarters lockup, the jailkeeper was making a routine search of McGowan when a 'packet' dropped from the latter's person. Detective Byrd, observing this sequence of events, picked the packet from the floor and found that it contained 'vegetation'. Byrd 'marked' the packet, placed it in another envelope which he then put into the 'lock box' of the police property room. The 'packet' was later analyzed by technical sergeant Charles Cain, of the Indianapolis Crime Laboratory, and found to contain marijuana.

Appellant argues four alleged errors:

1. The evidence found during the custodial search of the defendant should have been suppressed.

2. There was improper joinder of offenses at the trial.

3. Defendant was denied a constitutional right of counsel, at the time of his search at the city lockup.

4. The conviction was not supported by sufficient evidence.

THE TRIAL COURT DID NOT ERR IN ADMITTING EVIDENCE

FOUND AS A RESULT OF A WARRANTLESS

SEARCH INCIDENTAL TO A VALID ARREST

Appellant urges that since he was acquitted on Count 1, the original arrest for violation of the 1935 Firearms Act was invalid--thus any evidence resulting from a subsequent search must necessarily be suppressed.

The arresting officer must have 'probable cause' to effect an arrest when he lacks a warrant. Troop v. State (1970), Ind., 295 N.E.2d 875. As stated in Smith v. State (1971), Ind., 271 N.E.2d 133, 136:

'The test for probable cause to make an arrest is whether at the time of the arrest the facts and circumstances within the knowledge of the officers * * * were sufficient to warrant a prudent man of reasonable caution in believing that the arrestee had committed or was committing an offense.'

The record indicates that McGowan, in plain view of Detective Byrd removed a pistol from his person and layed it on a table. Because he was found not guilty for violating the 1935 Firearms Act, appellant contends the arrest for that violation was unlawful. However, the degree of evidentiary proof required to establish guilt is not necessary to establish probable cause for an arrest. Henry v. United States (1959), 261 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; see Capps v. State (1967), 248 Ind. 472, at 477, 229 N.E.2d 794.

We find that a prudent officer of reasonable caution under the circumstances here, would have probable cause to believe that McGowan was in violation of the 1935 Firearms Act. Such circumstances therefore justified the arrest.

As a result of the original arrest McGowan was later searched at the city lockup resulting in the finding of marijuana. Appellant urges that the results of this search should be excluded because there is no 'automatic' right to conduct a search just because he was arrested, and that even if such right exists, this particular search was illegal because it was conducted at the jailhouse and as such was not contemporaneous with the arrest.

The law in Indiana concerning such searches is settled. Our Supreme Court in Farrie v. State (1971), 255 Ind. 681, 266 N.E.2d 212, at 214, said:

'* * * A search is no less valid when conducted by a jailer when an accused is booked and is to be confined in a cell in the jail or stationhouse.'

In Ramirez v. State (1972 Ind.Ct.App.), 286 N.E.2d 219, the defendant was arrested upon suspicion of a particular burglary and was taken to the police station where he was asked to empty his pockets. An envelope from his pockets was found to contain evidence relating to an earlier burglary. The defendant was convicted of the burglary which was unrelated to the charges made at the time of the arrest. In Ramirez, supra, at 221 this court stated:

'In the case at bar the seizure of the envelope was contemporaneous with the booking of the defendant. Under the authority of Farrie v. State, supra, the search was justified and the fruits thereof were admissible in the prosecution of the instant offense.'

Finally, no error was preserved regarding the admissibility of the envelope containing marijuana because of the failure to properly object at trial court. The general rule is that on appeal a party may not raise for the first time different grounds for objection from those presented at trial. Cooper v. State (1972), Ind., 284 N.E.2d 799; Rector v. State (1971), Ind., 271 N.E.2d 452; Johnson v. State (1972 Ind.Ct.App.), 284 N.E.2d 517. Here, the prosecutor during direct examination of Sgt. Charles Cain, of the crime laboratory, attempted to enter the envelope into evidence and defense counsel objected. The record describes the sequence as follows:

'Q. Sergeant, what did you do to determine the contents of State's Exhibit Two?

A. I opened the envelope and found the vegetation. I performed a microscopic examination on the vegetation, and then I performed a chemical test on the vegetation.

Q. Has this been in your care and custody ever since?

A. No.

MR. TAYLOR: We would object to its introduction into evidence, Your Honor, for the reason it has not been in his care and custody since he has performed his examination, which was April the second.

THE COURT: Well, I take the objection goes to the matter of a foundation as far as the exhibit is concerned in respect to connection with the defendant, is that the way you mean it, Mr. Taylor?

MR. TAYLOR: Yes, Your Honor.

THE COURT: I am a little bit disturbed by one aspect of this, and I am going to sustain the objection for the related reason that the previous officer has stated that the did not examine the packet at the time it was dropped, and in view of that, I think what Mr. Taylor is talking about is a little bit more serious than usual in regard to the chain of possession. I am not saying that the State has to establish every person that has handled this if they are able to get over the hump in regard to identification. But I don't think that it has been satisfactorily shown at this time, in view of what the officer said, that this in fact is the same packet that the officer said the defendant dropped.

MR. TAYLOR: That's right, Your Honor.

THE COURT: So for the time being the objection is sustained.'

Thus, it is clear that the grounds for objection was a chain of custody issue not that evidence was obtained from an illegal search.

The prosecutor, during direct examination of Detective Byrd again attempted to have the envelope containing the marijuana entered into evidence and at this time defense counsel objected in the following manner:

'MR. TAYLOR: Your Honor, I am going to object to the introduction of State's Exhibit One and Two for the reason that Officer Byrd testified on direct originally that the contents of Exhibit Two were picked up by the keeper when they had the man to disrobe. Then at this late date then he testified that he picked it up. Now I don't know whether he did or he didn't, but we are objecting for the reason that there is a misstatement at one time or another of the contents of State's Exhibit Two which was in State's Exhibit One, and I object to the introduction of both of them.

THE COURT: All right, the objection will be overruled. State's Exhibits One and Two are admitted into evidence. You will be free to cross examine on anything that you feel is a conflict in the testimony, * * *'

Again it is evident that the grounds for the objection were not based on illegal search and seizure but upon a variance in the testimony of Byrd concerning who picked up the envelope.

For the reasons enunciated, we hold that it was proper to admit into evidence

the envelope containing marijuana. APPELLANT DID NOT

PRESERVE ALLEGED ERROR WITH RESPECT TO JOINDER OF OFFENSES

The second alleged error presented by appellant is that the court abused its discretion and denied a fair trial in trying him simultaneously for two separate and distinct offenses. Appellant citing Roark v. State (1956), 234 Ind. 615, 130 N.E.2d 326, reasons that since multiple defendants in criminal prosecutions are not entitled to consolidate indictments charging different offenses, the State, by implication, is not entitled to consolidation of different charges against a single defendant.

Aside from the fact that the factual circumstances here are materially different from that in Roark v. State, supra, appellant has failed to show that he made any objection or motion to separate the two offenses either before or during...