Mers v. State
| Decision Date | 23 September 1985 |
| Docket Number | No. 2-384A75,2-384A75 |
| Citation | 482 N.E.2d 778 |
| Parties | Stephen A. MERS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Bruce E. McLane, Marion, for appellant.
Linley E. Pearson, Atty. Gen., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.
Stephen Mers appeals his conviction in a jury trial of theft, a class D felony under Ind.Code Sec. 35-43-4-2(a) (1982). Mers raises four issues for our review, but because we are required to remand the case to the trial court, we discuss only two: 1
1) whether the issuance of a search warrant for Mers's vehicle was supported by an adequate probable cause affidavit, and
2) whether the defendant was tried by a fair and impartial jury?
Sometime between 8:30 p.m. on November 16, 1982 and 1:30 a.m. the next day, the Starland Arcade in Upland (Grant County), Indiana was forcibly entered. Quarters from the video machines, cigarettes from a vending machine, and a trash basket (to hold the cigarettes) were taken. The defendant-appellant, Stephen Mers, was charged with the theft of the various items.
On November 17, 1982, the Upland police obtained a warrant to search the trunk of Mers's car for the wastebasket and cigarettes. The warrant was based on the following affidavit:
"MICHAEL PARKER, being duly sworn upon his oath, deposes and says: That he believes and has good cause to believe that there are certain items, to-wit:
A cream or off-white colored plastic trash basket approx. two feet high and numerous packages of various brands of cigarettes located and concealed in or upon a certain car trunk, to-wit:
A 1974 blue Ford Torino auto with Indiana 1982 license plate 27E 7007 and that the above described items are unlawfully possessed and subject to seizure because Evidence of a Crime
The reasons and grounds for affiant's belief that there is probable cause for searching said trunk of 1974 Ford Torino are as follows: That affiant, Michael Parker observed the car in Upland, Grant County, Indiana, at approximately 11 p.m. on Nov. 16, 1982 while on patrol. Affiant saw the car drive into two service stations in Upland and then drive out and approximately one-half hour later affiant again saw the Ford, this time parked behind the Upland Tavern. On each occasion there were three subjects in the Ford Torino. Affiant went on another call and then at approximately 12:34 a.m. on Nov. 17, 1982 affiant saw the Ford on W. Urban Street, Upland, Grant County, Indiana, and saw two of the subjects get out of the car and walk The Ford Torino was then impounded because none of the three occupants was a licensed driver and in an inventory of the passenger compartment, approximately $7.00 in loose quarters, U.S. coins, was found in a white tee-shirt and two $1.00 bills, U.S. Currency, were found on the backseat floorboard. Affiant radioed Upland Marshal Roger Brown and had him check businesses in Upland and Brown found the Starland Arcade, located in the 100 block of E. Washington Street, Upland, Grant County, Indiana, had been entered after the lock hasp on the front door had been cut and radioed the information to affiant who then returned to Upland.
behind the Union 76 Service Station, corner of E. Urban and N. Main Streets, Upland, and try to open the rear door. Affiant called for assistance on a possible burglary being committed and Grant County Sheriff's Deputies Charles Rudicel and Dave Magers arrived shortly, but the men were gone and affiant described their car and Deputy Magers said he had past [sic] that car on the way into Upland and the sheriff's deputies then went after the Ford Torino which they stopped at Indiana 22 and I-69, Grant County, Indiana, writing traffic citations for the driver, Steve Mers, on charges of improper headlights, false registration and operating a motor vehicle on a beginner's permit without a licensed drive [sic] present.
That Marshall Brown checked the Starland Arcade and found trash on the floor and the doors to amusement machines and a cigarette machine all open and the coin boxes empty.
Affiant checked the area around the outside of the arcade and across the street, slightly to the south of the Arcade, affiant found a pair of metal cutters, and behind the Upland Tavern where affiant had seen the Ford Torino parked affiant and Deputy Sheriff Bill Norton found a blue die (one of pair of dice) made of foam material. That, later, when affiant examined the passenger compartment of the Ford Torino at the Grant County Jail, affiant found a second blue foam die which matched the one he had found behind the service station, each die having red polka dots on it.
That David W. Oaks, operator of the Starland Arcade, told affiant and Marshal Brown that a cream or off-white colored plastic trash basket approximately two feet in height was missing from the arcade and that the trash on the floor had been in the basket. Oaks said numerous packages of various brands of cigarettes had been taken from the cigarette vending machine in the arcade. Affiant believes the plastic trash basket and the packages of cigarettes are in the trunk compartment of the 1974 blue Ford Torino and therefore asks that a search warrant be issued to search the trunk compartment of the Ford Torino."
The trunk was pried open and the officers found the stolen wastebasket and 350 packs of cigarettes.
The fourth amendment to the Constitution of the United States provides the following guarantees:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 2
Under the fourth amendment, a judge must determine if probable cause has been established before a search warrant may be issued. McClain v. State, 274 Ind. 250, 410 N.E.2d 1297 (1980). While the quantity and nature of information necessary Indiana's statutory authority regarding search and seizure is found in Ind.Code Ann. Sec. 35-33-5-1 and 2 (West Supp.1984-85). Ind.Code Sec. 35-33-5-2 provides in pertinent part as follows:
The question in this case is reduced to whether there was sufficient factual information on the face of the affidavit from which a neutral and detached magistrate could reasonably have concluded that probable cause existed for the issuance of a search warrant. See Layman v. State, 407 N.E.2d 259 (Ind.App.1980).
The search warrant for the trunk of Mers's car was issued upon a probable cause affidavit which essentially describes the sightings of Mers's car with three occupants engaging in suspicious activity behind a service station. The affidavit also describes the burglary of an unrelated business, the Starland Arcade, after an unknown closing time on an unknown date. Any connection between these two incidents, the sightings of Mers's vehicle and the burglary of the Starland Arcade, rests inference upon inference.
Specifically, the affidavit indicates Mers's vehicle was seen in and out of two service stations, parked on West Urban Street near a third station where two of the car's occupants attempted to open the rear door, and parked behind the Upland Tavern. After Mers's vehicle was stopped, loose quarters and one blue foam die were found in the passenger area. Upon investigation, police found the front door lock hasp of the Starland Arcade had been cut and the arcade had been burglarized. Inside the arcade, the coin boxes were open and empty, and a plastic wastebasket and numerous packages of various brands of cigarettes were missing. A pair of metal cutters was found across the street and south of the arcade. Another blue die was found either behind the Upland tavern or behind a service station. 3
The affidavit is silent as to when the arcade had last been secured or checked before the theft was discovered. The only items reported missing were not found in Mers's vehicle before the search warrant was executed and Mers's vehicle was never sighted at the arcade. The cache of quarters described in the affidavit is without inferential value on the issue of probable cause; money was not reported missing from the arcade. It cannot be reasonably inferred the quarters are connected to the arcade, not only because the affidavit is silent as to the taking of any quarters, but also because logic and common sense permits the equally reasonable inference the operator of the arcade would have emptied coin accepting machines at the end of a business day and left the boxes open to discourage their damage by forcible entry. 4
The blue die found in Mers's car and the matching blue die, found either behind the Upland Tavern or behind the service station, only corroborates the earlier police sightings of the vehicle in both places. The We must conclude that the warrant for the search of Mers's car was...
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