Mentzer v. State
Decision Date | 23 May 1973 |
Docket Number | No. 3--1272A100,3--1272A100 |
Citation | 296 N.E.2d 136,156 Ind.App. 295 |
Parties | Ricki Charles MENTZER, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Appellate Court |
Thomas L. Ryan, Fort Wayne, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., for appellee.
Appellant was charged by affidavit with violation of the Uniform Firearms Act. Trial by jury in the Allen Superior Court, Criminal Division, resulted in a verdict of guilty and judgment was entered accordingly. Appellant was sentenced to five years in the Indiana State Prison.
On appeal, appellant raises two issues: 1) that a handgun, State's Exhibit No. 1, should have been suppressed; and 2) that prejudicial pretrial publicity violated appellant's right to a fair and impartial trial and the trial court's refusal to grant a change of venue from the county was an abuse of discretion.
The facts as established by the testimony of James F. Andrews, the first witness called by the State, are as follows:
On October 20, 1971, he was a detective with the Fort Wayne Police Department. On that date, at approximately eleven o'clock P.M., he was in a car with two other police officers about 150 to 200 feet from a lighted parking lot at the Four Winds Motel in Fort Wayne, Indiana. He was on a surveillance with its focal point being a light lavender 1962 Oldsmobile in such parking lot. At a prearranged signal they drove onto the parking lot and saw three subjects at the rear of the 1962 Oldsmobile and appellant went toward his (Andrews) side of the car. Andrews got out of the car and informed appellant, whom he knew to be Ricki Charles Mentzer, that he was under arrest. He directed appellant to 'face the car' and 'place his hands up on the roof of the car and spread his legs apart.' Almost 'spontaneous' upon beginning a search appellant said, 'I have a gun on me.' Upon reaching appellant's waistline Andrews removed a gun and placed it on his own person. Over objection, the gun, a .45 caliber revolver, was admitted into evidence. On cross-examination this witness testified that the police had no arrest or search warrant and he personally did not see appellant commit any crime at the motel.
Appellant then filed a 'Motion to Suppress Evidence.' The jury was then retired in order for a hearing to be had on defendant's motion outside the presence of the jury. The court then made the following statement:
The following facts were established at the hearing outside the presence of the jury.
On October 18, 1971, there was a burglary at the Hoosier Wire and Die in which over $78,000 in diamond dust was stolen. An informant contacted the Fort Wayne Police Department and stated that two people had approached him, the appellant and a man named Jack Hanks; that they wanted to sell the informant some diamond dust; and that they were going to bring the diamond dust to his farm and decide about selling it, and fix the price. The police set up both an eye surveillance and an electronic surveillance with a small concealed microphone on the informant.
The meeting took place at the time and place stated by the informant. The police heard the names of the men and a discussion concerning the diamond dust over the electronic surveillance. The officer who testified that he was 'stationed right on the farm where I (he) could observe cars coming and going and close enough to identify drivers and persons in the car.'
The informant told the police what conversation took place at the meeting and that there was to be another meeting at the Four Winds Motel parking lot at a certain time. Also, that a representative was to meet them there to buy the diamond dust. A stake-out was then perfected at the Four Winds Motel. No search warrant was obtained. Officer Andrews saw a 1962 Oldsmobile, light lavender in color, at informant's farm.
Although there are limits to the scope of a warrantless search incident to a lawful arrest, in the instant case if the arrest were lawful those limits were not exceeded. The question thus is: Was there a lawful arrest? If not, then the search was unlawful and the motion to suppress the gun should have been granted.
Whether the arrest was proper depends upon whether, at the moment the arrest was made, the officer had probable cause to make it.
Justice DeBruler, speaking for our Supreme Court, set out the test in Smith v. State (1971), Ind., 271 N.E.2d 133, at 136:
The validity of an arrest without a warrant depends upon the facts established in each case. Wagner v. State (1968), 249 Ind. 457, 462, 233 N.E.2d 236.
Appellant raises the question of reliability of the informant. See: Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.
A police officer need not testify that the...
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