Pawloski v. State

• Decision Date: 10 October 1978
• Docket Number: No. 476S127,476S127
• Citation: 380 N.E.2d 1230,269 Ind. 350
• Parties: Kenneth J. PAWLOSKI, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1230

380 N.E.2d 1230

269 Ind. 350

Kenneth J. PAWLOSKI, Appellant, v. STATE of Indiana, Appellee.

No. 476S127.

Supreme Court of Indiana.

Oct. 10, 1978.

Rodney H. Bayless, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Daniel L. Pflum, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted on two counts of first degree murder by arson, pursuant to IC § 35-13-4-1 (Burns 1975). He was sentenced to life imprisonment on each count.

Appellant alleges the trial court erred in denying his pre-trial motion to suppress a written confession made while in police custody.

First he contends the confession was the fruit of an illegal arrest in violation of his right against unreasonable search and seizure under the Fourth Amendment of the Constitution of the United States and Article I, Sec. 11 of the Constitution of Indiana. Arrest must be based upon probable cause. Probable cause has been defined as those facts and circumstances known to the arresting officer that would warrant a reasonable man to believe that a crime had been committed by the suspect. Gaddis v. State (1977), Ind., 368 N.E.2d 244; Peterson v. State (1968), 250 Ind. 269, 234 N.E.2d 488. Evidence obtained in an unlawful arrest may be excluded upon proper motion by the defendant. The scope of this exclusionary rule was defined in Wong Sun and James Wah Toy v. U. S. (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Callender v. State (1922), 193 Ind. 91, 138 N.E. 817.

In the case at bar a woman and a child were killed in a fire at the Saul Cohen Apartments at about midnight on Friday, January 17, 1975. On that night the appellant called one, James Chambers, and told him that he had set fire to the apartment building by igniting a railroad flare and throwing it in the mailbox of the building. Chambers testified that while driving home from work he saw that a fire had in fact occurred at the apartment building. He stopped and informed the investigating police officers that the appellant had called him earlier and admitted to setting off a flare in the building. Chambers was then taken to the police station where he was questioned concerning appellant's identity and probable location. The police were informed that appellant had had some legal problems with Saul Cohen. Based upon the information from Chambers, the police ordered appellant's arrest.

It must first be determined whether the information provided by Chambers was sufficient to establish probable cause or whether further corroboration of the reliability of Chambers' statement was necessary before the police were justified in ordering the appellant's arrest.

As a general rule an informant's reliability should be established before a finding of probable cause can be made. Reliability is usually shown by reference to (1) an informer's past record of reliability or (2) by extrinsic facts proving an informer's information reliable. Bowles v. State (1971), 256 Ind. 27, 267 N.E.2d 56.

There are two major types of informants and the test for determining the reliability of each is somewhat different:

( 1) Professional informants and anonymous tipsters; Generally, reliability of this category must be established by reference to underlying facts and circumstances which indicate that the information is trustworthy. Corroboration is necessitated because information of this type may be unreliable or self-serving, especially when given in return for favors such as money or leniency in possible criminal prosecution. Whiteley v. Warden, Wyoming State Penitentiary (1971), 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; Spinelli v. U. S. (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.

(2) Cooperative citizens; This group includes victims of crime or persons who personally witness a crime. These individuals generally come forward with information out of the spirit of good citizenship and the desire to assist law enforcement officials in solving crime. They are usually one-time informants and no basis exists from prior dealings to determine their reliability. Further, information of this type usually goes to past completed crimes rather than future or continuing crimes. Some jurisdictions have therefore held that informants of this type are to be considered reliable for the purpose of determining probable cause unless incriminating circumstances exist which cast suspicion upon the informant's reliability. Layne v. State (1975), Ind.App., 329 N.E.2d 612; People v. Bevins (1976), 6 Cal.App.3d 421, 85 Cal.Rptr. 876; Erickson v. State (1973), Alaska, 507 P.2d 508; State v. Paszek (1971), 50 Wis.2d 619, 184 N.W.2d 836; People v. Hoffman (1970), 45 Ill.2d 221, 258 N.E.2d 326; People v. Wolfe (1967), 5 Mich.App. 543, 147 N.W.2d 447. Cf. Jaben v. U. S. (1965), 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345; In re Boykin (1968), 39 Ill.2d 617, 237 N.E.2d 460; People v. Schader (1965), 62 Cal.2d 716, 44 Cal.Rptr. 193, 401 P.2d 665.

It should be noted that the requirement for corroboration is not totally eliminated. The amount of evidence necessary to satisfy the probable cause test is largely determined on a case-by-case basis. Wagner v. State (1968), 249 Ind. 457, 233 N.E.2d 236.

The case at bar involves a grey area between these two types of informants. Chambers was not a victim nor had he personally observed the crime. He based his conclusion solely upon the admissions of the appellant. He testified that he felt compelled to come forward with information which might be of assistance to the police even though it acted to incriminate and betray the confidence of a friend. Further, there were no circumstances which would have placed the reliability of Chambers in question. The police therefore had sufficient probable cause to order the appellant's arrest.

It next must be determined whether the officers were justified in proceeding immediately with the arrest without a warrant. Arrest warrants are required unless probable cause exists along with exigent circumstances rendering it impractical to seek a warrant or unless a crime is committed in the presence of an officer. Finch v. State (1975), 264 Ind. 48, 338 N.E.2d 629; Throop v. State (1970), 254 Ind. 342, 259 N.E.2d 875; Williams v. State (1969), 253 Ind. 316, 253 N.E.2d 242. Exigent circumstances have traditionally been found to exist when (1) a suspect is fleeing or likely to take flight to escape arrest or (2) evidence of contraband is threatened with destruction or removal unless an immediate arrest is made or (3) in cases involving hot pursuit or movable vehicles.

In the case at bar Chambers had made his statement to the police between twelve midnight and 4:00 a. m. on Saturday, January 18, 1975. Appellant's admitted acts had resulted in the death of two persons. The appellant knew that three of his friends could implicate him in the commission of the crime. Presented with this set of facts it seems unrealistic to require the police officers to take no action until the facts could be presented to a magistrate on Monday morning in order to obtain a warrant for appellant's arrest. Under such circumstances it is certainly within human experience to believe that the appellant would either give himself up within that period of time or would flee from the jurisdiction. The police acted properly under these circumstances in apprehending the appellant without a warrant.

The appellant next argues that the confession was inadmissible in that it was given involuntarily as a result of fear and coercion. We have held that before a confession will be deemed admissible it must appear from all the circumstances to have been given voluntarily and not through inducement, violence, threats or other improper influences so as to overcome the free will of the accused. Nacoff v. State (1971), 256 Ind. 97, 267 N.E.2d 165. The question of voluntariness is one for the trial court. A ruling on admissibility will not be disturbed on appeal when that ruling is supported by substantial evidence of probative value. This is true even though conflicting evidence is presented to the trial court on the issue of voluntariness. Riggs v. State (1976), 264 Ind. 263, 342 N.E.2d 838; Rogers v. State (1974), 262 Ind. 315, 315 N.E.2d 707.

In the case at bar the appellant testified that three or four detectives were present during interrogation. He stated that one detective grabbed and kicked at his chair and that because of these actions he was in fear of being beaten. He further testified that the police threatened to arrest his girlfriend, who had been in his company at the time he lit the flare at the Saul Cohen building, if he did not confess.

It should be noted that the only evidence supporting the appellant's allegations was from his own testimony. The record indicates that the appellant had been taken to the police station and fully advised of his constitutional rights before any interrogation commenced. During the first interrogation the appellant denied any knowledge of the fire. After the interrogation the appellant was permitted to visit for several hours with his girlfriend, family and friends, Pam and Jim Chambers. During this time the Chamberses and his girlfriend gave statements to the police. After his friends and family had left, the police told the appellant that they had statements implicating him in the starting of the fire. He stated that he had started the fire in order to "look big" in front of his friends. The next day the appellant was again advised of his rights and interrogated. He signed a written waiver and gave a statement admitting the crime of arson. During this period appellant was not represented by an attorney. Testimony of an officer indicated that the appellant never requested that the interrogation cease so that he might consult with an attorney. At one point before he signed the confession the appellant asked an officer if he...