Paxton v. State

• Decision Date: 20 November 1970
• Docket Number: No. 668S106,668S106
• Citation: 23 Ind.Dec. 483,255 Ind. 264,263 N.E.2d 636
• Parties: John PAXTON, Jerry Atherton, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 636

263 N.E.2d 636

255 Ind. 264

John PAXTON, Jerry Atherton, Appellants, v. STATE of Indiana, Appellee.

No. 668S106.

Supreme Court of Indiana.

Nov. 20, 1970.

William L. McClellan, Greencastle, for appellants.

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

HUNTER, Chief Justice.

Appellants were charged by affidavit with the crimes of theft and second degree burglary. Trial before a jury resulted in a verdict of guilty and sentence was pronounced thereon. On this appeal, appellants question the validity of a search conducted by police officers incident to a purported arrest on a charge of reckless driving. The essential question on this appeal relates to the propriety of the trial court's overruling appellants' motion to suppress the evidence discovered as a result of that search.

Briefly the facts and circumstances surrounding the arrest of appellants are as follows: Police Officer Juhn Bishop observed appellant Paxton driving a car eastward in the 1400 block of DeLoss Street in Indianapolis at approximately 4:40 A.M. on the morning of January 16, 1968. When the car pulled up on the north side of the street, Officer Bishop stopped and informed Paxton that he was under arrest for reckless driving. As near as can be determined from the record before us, the 'reckless driving' consisted of appellant Paxton's act of parking the car on the north side of DeLoss Street in the face of oncoming traffic. At any rate, appellant Paxton and his two companions, Atherton, also an appellant on this appeal, and Silcox were searched and placed in Officer Bishop's squad car while Bishop then made a preliminary search of Paxton's car. Underneath the front seat he found an overcoat belonging to Paxton which contained approximately thirty-eight dollars ($38.00) in change. ¹

According to Officer Bishop's testimony, he then placed the above named individuals under arrest on a 'pre-burglary' charge. This arrest was apparently made on the basis of Officer Bishop's knowledge that a tavern located in the vicinity had been broken into about one-half hour earlier and change had been removed from a cigarette machine located there.

Soon after appellants had been placed in the squad car and the overcoat discovered, Officer Hutchison arrived on the scene to assist Officer Bishop. Officer Hutchison then conducted a further search of the automobile and by peering into the trunk through an aperture located behind the back seat discovered several items which further aroused their suspicions. The items thus extracted from the trunk through the hole turned out to be rifles with sales tags still affixed. A wrecker was called and the car taken to Police Headquarters where the trunk lid was subsequently pried open. Numerous articles were recovered which were shown to have been stolen in robberies occurring in Cloverdale, Indiana.

In our view the resolution of the issue relating to the validity of the search in this case must be made using the discovery of the overcoat as the primary focal point. Had the overcoat been found pursuant to a lawful search, one might argut with some degree of plausibility that Officers Bishop and Hutchison would then have had probable cause to further search the automobile, ² and if probable cause in fact existed, such a search would have been within the ambit of reasonableness required by the Fourth Amendment to the United States Constitution notwithstanding their failure to obtain a search warrant. Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. Patterson v. State (1970), Ind., 255 N.E.2d 520.

Turning then to the circumstances surrounding the discovery of the coat, we are constrained to point out Officer Bishop's testimony relative to the facts that prompted his initial contact with appellants. On cross-examination at the hearing on the motion to suppress Officer Bishop testified as follows:

'Q. You haven't told the Court what first brought your attention to this particular automobile, can you tell how your attention was first called to the automobile?

A. Yes, they were going east on DeLoss, I turned around, they pulled up on the north side of the street, headed east, in the 1400, in fact in the front of 1446 DeLoss Street.

Q. And was any other traffic on the road?

A. No sir, there wasn't.

Q. And was it the fact that this car was proceeding along DeLoss Street at 4:00 o'clock in the morning what attracted your attention first to the car?

A. It had a little bit to do with it, yes sir.

Q. And was that unusual?

A. No sir, I was looking for a burglar suspect that just broke into a tavern in the 2500 block on Shelby Street.

Q. You hadn't been forwarded the description of John Paxton, or William Silcox, or the other one?

A. No sir. The only description was a short stocky male.

Q. So, you didn't connect this car with that particular burglary?

A. No sir.

Q. You didn't notice anything else about the car which attracted your attention to it other than the lateness of the hour?

A. No sir.'

It must be assumed then, that Officer Bishop's only legitimate reason for stopping the automobile was for the purpose of arresting appellant Paxton on a charge of reckless driving.

Appellant challenges the validity of the arrest and resulting search on the grounds that the elements of reckless driving were wholly absent. Ind.Ann.Stat. § 47--2001 (1965 Repl.) defines reckless driving as the act of driving a vehicle with reckless disregard for the safety, property or rights of others. As was indicated previously appellant Paxton's 'reckless' act was apparently that of parking on the north side of DeLoss Street in the fact of oncoming traffic. Whether such an act would constitute 'reckless driving' has not been decided. However, it is extremely difficult to imagine how it could be held to be such especially under the facts in this particular case since the evidence disclosed that there was no other traffic on the street at the time. In fact it might reasonably be inferred that the 'arrest' was a mere pretext used by Officer Bishop to conduct a search of appellants. Such police conduct in our opinion should be closely scrutinized by the courts of this state if Fourth Amendment sanctions are to continue to have any protective vitality.

Notwithstanding the above, we are willing to assume for the purposes of this case, that Officer Bishop saw Paxton driving in such a manner as to cause him to reasonably believe that Paxton was driving recklessly.

Appellant also attacks the search on the ground that it was not incident to a 'valid' arrest in that Officer Bishop failed to follow the statutory requirements in making an arrest for a traffic violation. Ind.Ann.Stat. §§ 47--2307, 47--2308 (1965 Repl.) provide that a person arrested on a traffic violation punishable as a misdemeanor shall be taken immediately before a magistrate within the county in which the offense charged is alleged to have been committed or be released (if a resident of this state) upon giving written promise to appear in court. Officer Bishop failed to make out a traffic ticket at the scene and likewise failed to take appellant Paxton before a magistrate within a reasonable time after the arrest. In fact, he was not slated to appear in court until some twenty-nine (29) hours after the arrest.

The above, however, is not dispositive on the question of the validity of the search. Assuming that Officer Bishop saw Paxton driving in a manner reasonably thought by Bishop to be a violation of the reckless driving statute, he had sufficient reason to make the arrest. The mere fact that he subsequently failed to effect same in no way impinges upon his right at the time of the arrest to make a valid search incident thereto. If Officer Bishop had probable cause to arrest Paxton on a reckless driving charge, that alone in our view would be determinative of his right to conduct the search.

Assuming the validity of the arrest, the primary question to be answered is the nature and scope of a search that can bemade incident to an arrest on a traffic violation. The answer to this question lies in a careful analysis of recent Supreme Court cases dealing with the Fourth Amendment protections against unreasonable searches and seizures. Although we concede that any conclusion is difficult under the general terms often characterizing such cases, we fell the following result is not only constitutionally correct, but required by recent United States Supreme Court cases.

As a premise from which to begin, it would seem clear that the mere fact of an arrest, by itself, would not necessarily justify a warrantless search incidental thereto:

'A search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest.' (our emphasis) Trupiano v. United States (1948), 334 U.S 699, 708, 68 S.Ct. 1229, 1234, 92 L.Ed. 1663, 1671.

Several recent United States Supreme Court cases culminating in Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 have dealt with the permissible scope of a warrantless search incident to an arrest and the principles there enunciated are of interest here. Chimel involved the search of a residence Without a warrant following the arrest of a suspect on a charge of burglarizing a coin shop. The Court's holding expressly utilized the reasoning of Trupiano by recognizing that the exigencies of the circumstances often required immediate action on the part of the arresting officer to prevent harm to himself or the destruction of evidence.

'When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. ...