Rabadi v. State, 18S00-8708-CR-787

Citation541 N.E.2d 271
Decision Date21 July 1989
Docket NumberNo. 18S00-8708-CR-787,18S00-8708-CR-787
PartiesIssa RABADI, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

William G. Bruns, Cannon & Bruns, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

In a jury trial in the Delaware Circuit Court, Issa Rabadi was convicted of attempted murder, a Class A felony. I.C. 35-41-5-1; I.C. 35-42-1-1(1). He was sentenced to the maximum sentence of fifty years, a thirty-year presumptive sentence enhanced by twenty years for aggravating circumstances. I.C. 35-38-1-7; I.C. 35-50-2-4.

Appellant raises five issues on appeal. He maintains that the trial court erroneously failed to grant his motion for a continuance for four days due to the absence of an alibi witness, that it committed reversible error by admitting evidence unlawfully obtained in a warrantless search of his car, that it erred in refusing to allow two alibi witnesses to testify at his sentencing hearing, that the trial court failed to consider and properly weigh certain mitigating circumstances in determining sentence and that it wrongfully considered his failure to appear at an extradition hearing as an aggravating circumstance.

The facts of the case that tend to support the verdict indicate that appellant came to visit the victim, Victor Rabadi, on May 13, 1986 at his home south of Muncie. Both men are originally from Jordan and when they met, appellant grabbed Victor and kissed him, announcing that he was a nephew of Victor's sister-in-law and wanted to know about work possibilities in Muncie. Victor fixed appellant a cup of coffee, the two chatted, Victor left for a short time to have his truck repaired, returned and took appellant out to lunch at a local restaurant. Shortly thereafter, appellant left for his home in Chicago in his brown Buick Skylark which had his name, "Issa", on the trunk.

Three days later, on May 16, appellant appeared again at Victor's house near Muncie shortly after 7:00 a.m. He was accompanied by a black man referred to only as "Jim," who appellant said was interested in buying Victor's camper which had been for sale. Victor fixed the three of them coffee which they drank outside. They inspected the camper which was in the driveway. Jim went inside the camper, and, at this point, a neighbor drove by and saw Victor and a dark-skinned man with "dark wavy curly hair" standing in the driveway. Jim paid Victor fifty dollars as deposit on the camper and said he would return later when he could get a friend with a pick-up truck to come haul the camper for him. Jim and appellant left around 9:00 a.m. and returned about fifteen minutes later, saying their car had overheated and that they needed some water. After getting two buckets of water from the victim, appellant asked for a glass of water and both he and Jim entered the house. Shortly thereafter, Jim hit the victim with a claw hammer in the head and appellant stabbed him numerous times in the chest and abdomen. Victor was dragged into his kitchen where his throat was cut. The cords on his telephones were severed. After appellant and his accomplice had left and Victor regained consciousness, he managed to get to his neighbor's garage where he called for help.

At trial, appellant testified on his own behalf and described his trip to Muncie on May 13. This testimony agreed with the testimony of the victim describing the events of that day. Appellant, however, denied being at Victor's house on May 16, the day of the attack, and presented alibi witnesses which placed him in Chicago at 7:00 a.m. and after 11:00 a.m. on the day of the assault. He also presented evidence that the drive from Chicago to Muncie took three hours and forty-five minutes. One witness, who could corroborate appellant's story that he was in Chicago at the time the attempted murder actually took place, did not show up for the trial. At the sentencing hearing, appellant attempted to introduce the testimony of this witness and one other who could have placed him in Chicago at the time of the crime. The court refused to hear such testimony.

We turn first to the constitutional issue of whether the trial court committed error by improperly admitting evidence from an illegal search of appellant's car while it was impounded.

Appellant was arrested in Chicago on May 19, 1986, while driving in his car. The car was impounded by the Chicago police. A search of the car was conducted three days later on May 22, by Detective John Smith of the Chicago Police Department, who testified at trial. It yielded a knife, a tire iron, a map of Indiana with Muncie underlined in pen, a piece of paper with the victim's name and address on it, a wedding invitation, and a bank statement of appellant's account at a Chicago bank showing a balance of around $4000. After establishing that no warrant had issued from Delaware County or Chicago for the search, defense counsel objected to the admission into evidence of any of the items seized in the search on the grounds that they were taken in violation of appellant's constitutional right under the Fourth Amendment to be free from unreasonable searches and seizures. The trial court admitted all the items, ruling that they were lawfully seized as part of an inventory of appellant's car.

The Fourth Amendment to the United States Constitution requires as a general rule that searches of private property be both reasonable and carried out pursuant to a properly issued search warrant. Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235, 241 (1979); Robles v. State (1987), Ind., 510 N.E.2d 660; Stallings v. State (1987), Ind., 508 N.E.2d 550. The warrant requirement is nearly absolute, but on occasion the public interest demands greater flexibility than is offered by the constitutional mandate and therefore a "few jealously and carefully drawn exceptions" have been made to the rule. Sanders, 442 U.S. at 759, 99 S.Ct. at 2590-2591, 61 L.Ed.2d at 242. The burden of showing that a warrantless search was conducted within the confines of one of the exceptions to the warrant requirement is upon the state. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Fyock v. State (1982), Ind., 436 N.E.2d 1089. Some of these exceptions concern searches of automobiles and the rationale for them centers on the lowered expectations of privacy that an individual has in his vehicle and its mobility. Other concerns that may support warrantless searches are police and public safety, the potential liability of police for lost or stolen items temporarily in their possession, protection of an arrestee's possessions, and the risk of destruction or loss of evidence as well as other exigent circumstances.

Thus an exception to the warrant requirement has been made for routine inventory searches of impounded automobiles conducted pursuant to established police caretaking procedures. This was first recognized by the Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) and by this Court in Dixon v. State (1982), Ind., 437 N.E.2d 1318. Three of the needs cited above support the rationale for the exception: protection of private property in police custody, protection of police from claims over lost or stolen property and protection of police from potential danger. Opperman, 428 U.S. at 369, 96 S.Ct. at 3097, 49 L.Ed.2d at 1005. Probable cause is not an issue in such inventory searches because of the non-criminal context in which they occur. See Opperman, 428 U.S. at 370 n. 5, 96 S.Ct. at 3097 n. 5, 49 L.Ed.2d at 1006 n. 5. When an inventory is carried out in accordance with routine police procedures, there is an assurance that the intrusion will not exceed the scope necessary to fulfill these caretaking needs. However if the inventory is not conducted as a matter of routine department policy to fulfill the caretaking functions, the risk that it is being used as a mere pretext to conceal an investigatory police motive becomes too great. This type of warrantless search is unreasonable as we recognized in Paschall v. State (1988), Ind., 523 N.E.2d 1359.

Here, the State failed to meet its burden of demonstrating that the items from appellant's car were seized in the course of a routine inventory of his automobile. On direct examination, Detective Smith testified that he worked in the violent crime division of the Chicago Police Department and that there had been a request from the Delaware County Police Department to search appellant's automobile. Smith also stated that appellant was arrested while driving the vehicle, which was impounded, and that as a matter of general procedure, vehicles that are impounded are searched. Later, he stated that he had gone to the auto pound to "inventory any evidence that was recovered." On cross-examination, Smith indicated that he had not taken part in appellant's arrest, that the search had taken place three days after the arrest and that appellant had shown up at the pound to get his car while the search was being conducted.

Characterizing a search conducted under the circumstances here as a routine inventory would open the door to unbridled intrusion by the state into those interests protected by the Fourth Amendment. It stretches credulity too far to suggest that sending a detective from a police department's violent crime division, upon the request of another police department that a search be conducted, to "inventory any evidence" found in a car three days after it was impounded, was merely part of routine police caretaking procedures. The interests protected by the inventory exception to the warrant requirement were moot by the time the search here was conducted and inventory was simply a masquerade for a warrantless search for evidence. To make its required showing that its actions come within the inventory exception, the state must do...

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