Mills v. State

• Citation: 177 Ind.App. 432,379 N.E.2d 1023
• Decision Date: 05 September 1978
• Docket Number: No. 2-277A45,2-277A45
• Parties: Norman MILLS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 1023

379 N.E.2d 1023

177 Ind.App. 432

Norman MILLS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-277A45.

Court of Appeals of Indiana, Fourth District.

Sept. 5, 1978.

John Muller, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

This case is an appeal from a conviction of violating the Indiana Controlled Substances Act, I.C. 1971, 35-24.1-4.1-6 (Burns Code Ed.). The Appellant, Norman Mills, was charged and found guilty of possessing heroin, of a weight less than ten grams, for which he was sentenced to three years imprisonment. On appeal, Mills has made four assignments of error, properly raised and preserved, for our determination. ¹ We herein affirm his conviction.

On the basis of an affidavit recounting the affiant policeman's personal observation of the execution of two "controlled buys," a search warrant was issued for the residence, shared by Mills and a woman friend, in which the sale apparently took place. The search warrant was executed the same day. The officers met Mills as he was leaving his residence, identified themselves, and returned him to the house where the officers read Mills the search warrant and informed him of his rights. The officers then searched the residence. One officer was designated evidence custodian and as objects were found they were brought to him. The woman with whom Mills shared the residence was not present. On the basis of the items found, namely bindles of a substance which proved to be heroin and paraphernalia including syringes, Mills was found guilty of possessing a controlled substance.

Mills' first assignment of error is the admission of evidence seized pursuant to the search warrant, of which he questions the validity on four grounds.

Mills first attacks the warrant on the ground that the affidavit stated no facts relating to the credibility of the "informant." I.C. 1971, 35-1-6-2 (Burns Code Ed.) provides that where an affidavit is based on hearsay the affiant must state facts within his personal knowledge as to the credibility of the informant. Strict compliance with the statute is required. Madden v. State (1975), Ind., 328 N.E.2d 727, 728. The "informant" referred to by Mills is the unnamed person who acted the role of buyer in the controlled buy arranged on two occasions by the Sheriff's Department. A controlled buy consists of searching the person who is to act as the buyer, removing all personal effects, giving him money with which to make the purchase, and then sending him into the residence in question. Upon his return he is again searched for contraband. Except for what actually transpires within the residence, the entire transaction takes place under the direct observation of the police. They ascertain that the buyer goes directly to the residence and returns directly, and they closely watch all entrances to the residence throughout the transaction.

In a similar case, Hignut v. State (1973), 17 Md.App. 399, 303 A.2d 173, a Maryland court found that the police observation involved in a controlled buy is sufficient corroboration to establish the credibility of the informant, under Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. The court further noted that

The informant's story, once "credibility" is established, becomes little more than surplusage. If the informant had been nothing more than a robot or a trained ape, the directly observed "controlled buy" with the informant as a mere mechanical agent would have been sufficient to establish probable cause. 303 A.2d at 181.

We agree that where the controls are adequate, the affiant's personal observation of a "controlled buy" may suffice as grounds for a finding of probable cause.

Probable cause was determined, in the present case, solely on the basis of the affiant's observation of the controlled buys. There was no mention in the affidavit of any statements of the "buyer" as to what occurred inside the residence. His credibility was not relied on, therefore the affidavit cannot be said to be based on hearsay and the directions of the statute are inapplicable.

Mills next claims the warrant to be defective for lack of specificity as to the items to be seized. The warrant in this case consists of a printed form with a number of blank lines on which the affidavit was copied in full. Below these lines is printed the following:

And the Court having examined said affidavit and being fully advised in the premises, now finds there is probable cause for the issuance of this search warrant.

You are, therefore, commanded, in the name of the State of Indiana, with the necessary and proper assistance, in the day time or in the night time, to enter into the premises described in said affidavit and there diligently search for the said ............... aforesaid, and that you bring the same or any part thereof found on such search, forthwith before me, at my office, to be disposed of according to law.

Mills bases his argument on the failure to enter anything in the above blank.

I.C. 1971, 35-1-6-3 (Burns Code Ed.) provides the following form for search warrants:

State of Indiana )

StateofIndiana ) SS:

County of Marion )

To any constable, police officer, sheriff or conservator of the peace, greeting: Whereas, there has been filed with me an affidavit of which the following is a copy: (Here copy the affidavit.) You are, therefore, commanded, in the name of the State of Indiana, with the necessary and proper assistance, in the daytime or in the nighttime to enter into or upon the premises described in said affidavit and there diligently search for said goods and chattels, to wit: in said affidavit described and that you bring the same, or any part thereof found on such search, forthwith before me at my office, to be disposed of according to law.

Given under my hand this ____ day of ______, 19____.

The example indicates that the affidavit can be copied into the search warrant, and that the necessary specificity may be found by referring to the affidavit. In this case, the affidavit clearly specified that the warrant is sought in order to conduct a search for heroin. The affidavit, being copied 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 Cir. 1976).

Mills further claims the warrant to be defective in that he was named therein as Norman Miller rather than Norman Mills. He argues that because of this error the warrant does not adequately describe the place to be searched, thus inbuing the officers executing the warrant with fatal discretion. In Snedegar v. State (1926), 198 Ind. 182, 150 N.E. 367, the Indiana Supreme Court ruled with respect to this issue.

The place to be searched and the things to be seized were particularly and definitely described, and, although there was a mistake in naming the person in possession of the things to be seized, such mistake will not invalidate the warrant or render illegal the search, for it is the certainty of place and the specific articles there possessed which are the vital elements of a valid search warrant. Article 1, § 11, Constitution of Indiana; section 8338, Burns' 1914. Naming the person in possession, as was done in this case, may be treated as information for locating the place. In short, the sole purpose of a search warrant is the discovery, at a particular place, and seizure by the officer charged with its enforcement, of specific articles which constitute or contain evidence of crime. 150 N.E. at 368.

In the present case, both the place to be searched and the items to be seized are clearly and definitely described. The residence is described both by street address and physical appearance, and the woman with whom Mills shared the residence is correctly identified. This is a sufficiently specific description to negate the uncertainty created by misnaming Mills.

Finally, Mills contends that the failure to include an inventory of items seized in the sheriff's return of the warrant requires that the evidence be suppressed at trial. This precise question has not been addressed in Indiana. ² I.C. 1971, 35-1-6-4.1 (Burns Code Ed., Supp. 1977) requires that a return on a warrant be directed to the issuing court or judge, indicating the date and time the warrant was served, and including a list of items seized. It is the near-unanimous opinion of those jurisdictions ruling on this issue that the failure to comply with a statute requiring the attachment of inventories to returns is merely neglect of a ministerial duty and neither invalidates the warrant or the search nor affects the admissibility of the items seized. See State v. Montoya (App. 1974), 86 N.M. 119, 520 P.2d 275, Judge Hendley's dissent, and cases cited herein. One purpose of requiring the inventory is to protect the proprietary interest of the owner of the items seized. It is unnecessary to invoke the exclusionary rule where there are civil remedies available for any loss or destruction of property. Also, the failure to attach an inventory cannot have prejudiced Mills in the preparation of his defense, as such material is clearly discoverable under Rowe v. State (1974), 262 Ind. 250, 314 N.E.2d 745. We find in this failure, therefore, no grounds for reversal.

Mills' second assignment of error is the refusal of the trial court to compel disclosure of the identity of the "informant" who participated in the controlled buy.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the United States Supreme Court concluded, with respect to this issue that ". . . no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public...