Ramirez v. State

• Citation: 153 Ind.App. 142,286 N.E.2d 219
• Decision Date: 22 August 1972
• Docket Number: No. 272A95,272A95
• Parties: Lawrence S. RAMIREZ, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 219

286 N.E.2d 219

153 Ind.App. 142

Lawrence S. RAMIREZ, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 272A95.

Court of Appeals of Indiana, Third District.

Aug. 22, 1972.

A. Martin Katz, Gary, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Robert F. Colker, Asst. Atty. Gen., for appellee.

HOFFMAN, Chief Judge.

This appeal presents two issues for this court's review. The first issue is whether an envelope was obtained from the person of the defendant, Lawrence S. Ramirez, via an unreasonable search and seizure. The second issue is whether the signed confession of the defendant was improperly admitted into evidence.

The defendant was charged by amended affidavit with the crime of second-degree burglary. The defendant was arraigned and plead not guilty. The cause was tried to a jury which found the defendant guilty of second-degree burglary, as charged, and defendant was sentenced to the Indiana State Reformatory for a period of not less than two, nor more than five years. The timely motion to correct errors filed by the defendant was overruled and this appeal followed.

The pertinent facts may be summarized from the record before us as follows:

George Felling, a police officer for the City of Hammond, Indiana, testified that on the morning of August 15, 1970, he received a call that a burglary was in progress at a doctor's office in his vicinity. Upon reaching the doctor's office Felling testified that he ran to the rear of the building and saw the defendant prying the lock of the rear door with a screwdriver. Felling testified that the defendant saw him and started to run and continued until Felling 'fired a warning shot in the air, and he (defendant) stopped.' Felling further testified that he placed the defendant under arrest at the scene and brought him into the police station; and that at the police station the defendant was told to take everything out of his pockets, and the defendant pulled out a yellow envelope full of change bearing the words 'Couch Adjustment' and 'pop money.'

An employee of the Couch Adjustment Company, Inc. testified that between five o'clock p.m. on August 14, 1970, and nine o'clock a.m. on August 15, 1970, the Couch Adjustment Company had been broken into. The president of Couch Adjustment Company, Inc. identified the envelope taken from the person of the defendant as being an envelope kept in a locked filing cabinet in the office of the Couch Adjustment Company, Inc. He testified that money used to replenish the supply of 'pop' was kept in the envelope.

Detective Sergeant Vernon Harris of the Hammond Police Department was assigned to work on the Lawrence Remirez case. He testified that he investigated the burglary at the Couch Adjustment Company, Inc. and then returned to the police station and had Ramirez brought into his office. He testified that he and another detective gave Ramirez 'a copy of his constitutional rights and read it to him and showed it to him, to make sure that he understood it before we had any conversation.' Harris further testified that Ramirez 'agreed to talk to us and he signed the waiver.'

The jury was then excused, and a hearing was held concerning the voluntariness of the waiver and confession signed by defendant-Ramirez. The jury was called back and the waiver and confession were offered into evidence. The defendant objected on the basis that the confession was not a voluntary statement. The objection was overruled by the trial court and the waiver and confession identified as State's Exhibit No. 2 was received into evidence.

Thereafter, State's Exhibit No. 1, the envelope previously taken from Ramirez, was received into evidence without objection. The issue raised concerning this envelope is whether it was obtained through an unreasonable search and seizure.

The circumstances surrounding the obtainment of the envelope are that the defendant was taken from the place where he was arrested to the police station for booking. At the police station he was either searched by the officers or was ordered by the officers to remove everything from his pockets. The envelope was thereby obtained and was used as evidence in the prosecution of another crime, to-wit: the burglary of the Couch Adjustment Company, Inc.

The justification for a warrantless search as an incident to a lawful arrest grows out of the necessities of the situation. Trupiano v. United States (1948), 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663. When an arrest is made the officer is justified in searching the person of the arrestee and the area within his immediate control--meaning the area within which he might gain possession of a weapon or destructible evidence. Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

In Farrie v. State (1971), Ind., 266 N.E.2d 212, the appellant was arrested for possession of narcotics and when he was booked he surrendered certain articles of personal property for safekeeping. Among these articles was a wristwatch which was subsequently turned over to another police officer and was admitted into evidence against the appellant in a prosecution for second-degree burglary. Our Supreme Court, at 214 of 266 N.E.2d, held:

'A search incidental to a valid arrest is lawful regardless of what it reveals. In the case at bar defendant does not challenge the validity of the arrest. A search is no less valid when conducted by a jailer when an accused is booked and is to be confined in a cell in the jail or station-house.'

In the case at bar the seizure of the envelope was contemporaneous with the booking of the defendant. Under the authority of Farrie v. State, supra, the search was justified and the fruits thereof were admissible in the prosecution of the instant offense.

Furthermore, no error was preserved regarding the admissability of the envelope because of the failure of the defendant to make a timely objection. Harrison v. State (1972), Ind., 281 N.E.2d 98.

The next issue is whether the signed waiver and confession of the defendant were improperly admitted into evidence.

We need not dwell on the proposition that a confession is only admissible where it is free and voluntary. Smith v. State (1969), 252 Ind. 426, 249 N.E.2d 493, 496. A confession is not admissible unless it is 'the product of a rational intellect and a free will.' Blackburn v. Alabama (1960), 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242. It has been said that the privilege against self-incrimination is the 'essential mainstay' of our system of criminal prosecution. Such privilege is only fulfilled when a person is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will.' Malloy v. Hogan (1964), 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, 659.

In Lego v. Twomey (1972), 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, the petitioner did not deny having made the confession but did challenge whether it was made voluntarily. The trial judge conducted a hearing out of the presence of the jury. Conflicting evidence was heard, and the trial judge ruled the confession was admissible. The jury was instructed by the trial court as to the prosecution's burden of proof but it did not instruct that the jury was required to find the confession voluntary. The petitioner was found guilty and the conviction was affirmed by the Supreme Court of Illinois. The United States District Court denied habeas corpus relief and its decision was affirmed by the United States Court of Appeals for the Seventh Circuit. In affirming the decision of the Court of Appeals, the United States Supreme Court, at 626--627 of 92 S.Ct., stated:

'Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774 (, 12 L.Ed.2d 908) (1964), an offspring of Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), requires judicial rulings on voluntariness prior to admitting confessions. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), excludes confessions flowing from custodial interrogations unless adequate warnings were administered and a waiver was obtained. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), make impermissible the introduction of evidence obtained in violation of a defendant's Fourth Amendment rights. In each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts.

'(W)e are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the...