Patterson v. State, 868S124

• Decision Date: 20 February 1970
• Docket Number: No. 868S124,868S124
• Parties: Wayman PATTERSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 520

255 N.E.2d 520

253 Ind. 499

Wayman PATTERSON, Appellant, v. STATE of Indiana, Appellee.

No. 868S124.

Supreme Court of Indiana.

Feb. 20, 1970.

Rehearing Denied April 15, 1970.

Isadore D. Rosenfeld, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Curtis C. Plopper, Deputy Atty. Gen., for appellee.

GIVAN, Judge.

Appellant was charged in St. Joseph County with the crime of robbery, which was alleged to have been perpetrated on the 15th day of November, 1966. Trial resulted in a verdict of guilty of the included crime of theft.

On the 21st day of November, 1966, the appellant was apprehended by an Ohio State Police Officer while driving his automobile on the Ohio State Turnpike. The arresting officer had just received police radio communication that there had just been an armed robbery at the Exit 6 Motel, and that the subject believed to be involved entered the turnpike at Exit 6. He was described as a tall negro male driving a light blue 1963 Pontiac. Shortly after receiving this communication the officer saw the defendant, who fit the description, driving a light blue 1963 Pontiac some ten miles west of Exit 6. As he was radioing for aid to apprehend the defendant, the defendant stopped his vehicle, whereupon the officer asked to see appellant's toll ticket. The ticket showed that appellant had entered at Exit 6. The officer then searched the person of the defendant, finding a tear gas gun. Under Ohio law this apprehension and search of the defendant constituted an arrest. The Court of Common Pleas of Ohio has stated that:

'Arrest simply means to deprive a person of his liberty by legal authority. Thus any restriction of the right of locomotion the purpose of which is to apprehend or detain such person any reasonable length of time in order that he be forthcoming to answer an alleged or suspected crime is an arrest.'

State v. Coles (1969), 48 Ohio Opinions 2d 309, 249 N.E.2d 553, 557.

The officer making this arrest had, probable cause by reason of police radio communication to believe that the appellant had just perpetrated a felony. Manson et al. v. State (1967), 249 Ind. 53, 229 N.E.2d 801.

The fact that the appellant was later advised by police officers that he was also being arrested for the possession of a concealed weapon does not alter the fact that his initial arrest was based solely on the probable cause of his just having committed a felony. Immediately following appellant's arrest other officers arrived on the scene and a search of appellant's car was conducted. As a result of this search articles were found which had been obtained in the Exit 6 motel robbery. In addition, a checkbook and a letter were found which had been the subject of the robbery in St. Joseph County which had taken place some five days previously and which is the subject of the prosecution at bar. The appellant moved to suppress the evidence so obtained on the ground that the search was illegal and in violation of his constitutional rights against unlawful search and seizure.

The appellant argues that the Indiana courts should hold the search unlawful because a trial court in Ohio suppressed the evidence on the ground of an unlawful search. However, an examination of the Ohio authorities discloses the following:

'When a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporary search for weapons or for the fruits of or implements used to commit a crime. State v. Bowman, 17 Ohio App.2d 195, 245 N.E.2d 380. The rule is extended to motor vehicles but the justifications therefor are absent where a search is remote in time and place from the arrest. State v. Call, 8 Ohio App.2d 277, 220 N.E.2d 130; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881 (11 L.Ed.2d 777).'

State v. Coles, supra.

We do not feel bound by a decision of an Ohio trial court.

Ohio and Indiana are both required to make such determinations in keeping with the decisions of the Supreme Court of the United States. Elkins v. United States (1960), 364 U.S. 206, 224, 80 S.Ct. 1437, 4 L.Ed.2d 1669.

Great weight is placed by the appellant on the case of Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. The Preston case was written by Justice Black. The factual situation was that three men were arrested in a parked car on a charge of vagrancy. The men were taken to jail, and the car was towed to a garage. Soon after the men had been booked at the station, police officers went to the car and forced entry into the trunk through the back seat of the car where they found stocking masks, ropes, pillow slips and illegally manufactured license plates. Justice Black held that under this situation the search was illegal for the reason that it was too remote in time from the arrest and that the articles found in the search were not directly connected with the arrest.

In the case of Cooper v. California (1967), 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, a similar factual situation was again presented to the Court and Justice Black again wrote the opinion for the Court. The facts in the Cooper case are that Cooper was arrested for a violation of the narcotics law and his car impounded in connection with the arrest. Following the impounding of Cooper's car and while it was in the police garage, it was searched without a warrant and narcotics found in the glove compartment. The California District Court of Appeals held that they were bound by the holding in the Preston case, and that the search was, therefore, unlawful. However, they held the unlawful search did not 'result in a miscarriage of justice' and refused to reverse the case. The Supreme Court granted certiorari and Justice Black, who had written the Preston case, reviewed the facts in that case and stated that they are not applicable to the Cooper case, pointing out that Preston's arrest was for vagrancy and that the later search of his car was not connected directly with this arrest, and the goods found pursuant to search had nothing to do with his arrest on the charge of vagrancy. He points out in affirming the Cooper case that the search was in fact legal because Cooper had been arrested for narcotics violation, and that the car was seized and searched because of the crime for which they arrested the petitioner.

The Supreme Court of the United States in the recent case of Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, cited the Preston case, and overruled both Rabinowitz and Harris in holding that a search must be confined to the person and his immediate surroundings. However, in a footnote the Court points out:

'Our holding today is of course entirely consistent with the recognized principle that, assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants 'where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."

In the case at bar Patterson was arrested by a highway patrol officer within minutes after the officer had received word by police radio that a man matching Patterson's description, driving an automobile fitting the description of Patterson's car, had just robbed a motel at Exit 6. The officer had probable cause to believe that Patterson had just committed the robbery of the motel. Patterson was put under arrest and handcuffed immediately for the crime of robbery. Under the circumstances revealed by the record before us, the police officers had the right to search the vehicle at that time since they had probable cause to believe that it had just been used in accomplishing the robbery. (See Chimel footnote, supra.) The result of their search was to find articles taken in the robbery of the motel in Ohio and in the earlier robbery charged in this case.

The fact that the evidence used in the case at bar was obtained by a search after a lawful arrest for another offense does not preclude its use in the prosecution for an offense other than that for which the arrest was made.

Rucker v. State (1948), 225 Ind. 636, 639, 77 N.E.2d 355.

The search in this case was proper under the above cited cases of the Supreme Court of the United States.

The trial court is, therefore, affirmed.

HUNTER, C.J., and ARTERBURN, J., concur.

JACKSON, J., dissents with opinion in which DeBRULER, J., concurs.

JACKSON, Judge (dissenting).

I cannot agree with the conclusions reached in the majority opinion and dissent thereto.

Appellant was charged by affidavit signed by Helen Dziubinski, made on information and belief and filed November 28, 1966, with the crime of robbery by putting in fear. The affidavit, omitting formal parts, signatures and jurat, reads in pertinent part as follows:

'That on or about the 15th day of November, 1966, at and in the County of St. Joseph, State of Indiana, WAYMAN PATTERSON did take from the person of Helen Dziubinski articles of value, to-wit: Twenty Eight ($28.00) Dollars in lawful currency of the United States of America, a certain handbag valued at Five ($5.00) Dollars, two shotguns each valued at approximately One Hundred ($100.00) Dollars, two rifles each valued at approximately One Hundred ($100.00) Dollars, a certain twenty-one jewel Cyma wristwatch valued at One Hundred ($100.00) Dollars, and a Lord Nelson men's calendar watch valued at Twelve ($12.00) Dollars, by putting said Helen Dziubinski in fear while she was then and there in the Westwood Motel, located at 25200 West Western Avenue, in Warren Township, County and State aforesaid, contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

On arraignment to the above charge appellant stood mute and the court entered thereto for the appellant a plea of not guilty, to the entry of which plea no objection or exception was made. Trial by jury was had, beginning November 9,...