Riddle v. State, 370S53

• Decision Date: 07 December 1971
• Docket Number: No. 370S53,370S53
• Parties: James RIDDLE, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 788

275 N.E.2d 788

257 Ind. 501

James RIDDLE, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 370S53.

Supreme Court of Indiana.

Dec. 7, 1971.

John G. Bunner, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellee.

DeBRULER, Judge.

James Riddle was tried by the Honorable William H. Miller, Judge, and a jury in the Vanderburgh Circuit Court on the charge of theft, by attempting to control property by threat, under I.C. 1971, 35--17--5--14, being Burns § 10--3041 (1971 Supp.). He was found guilty and sentenced to not less than one nor more than ten years. His direct appeal from that conviction alleges the following three errors: (1) that evidence seized pursuant to a defective search warrant should have been excluded; (2) that there was a fatal variance between the evidence and the State's reply to the appellant's alibi notice; and, (3) that the court erred in refusing to give a proffered instruction. For reasons set out below, we do not agree with these allegations of error and thus affirm the conviction.

The testimony reveals that the victim, a member of the United States Army, arrived in Evansville, Indiana, by bus at approximately 10:00 p.m. on July 30, 1969. After depositing his coat, a savings bond, and a packet of military records in a bus station locker, he visited several taverns. He testified that he consumed about four-teen beers and lost a couple of hundred dollars playing cards before he left the last tavern at about 2:00 a.m. As he left the Kentucky Tavern, adjoining the bus station, he was approached by a man with a proposition involving a girl. They crossed the street to an entrance of the Vendome Hotel at which point the man struck him and then pulled out a small pistol and robbed him of his money and the key to the bus locker as well as a small zippo lighter. His assailant then fled and the police were summoned.

An unidentified bystander apparently told the police that the assailant lived in the YMCA, and the police started in that direction with the victim, Mr. Hogan. On the way, Mr. Hogan spotted his assailant on the street and pointed him out to the police. That man was the appellant here, and he was placed under arrest at that time. The police had information that the appellant was registered in room 314 at the YMCA and immediately dispatched a guard to watch that room. The next morning at approximately 8:00 a.m. the police secured a search warrant from a magistrate to search the room of the appellant. In the search of the room the officers found incriminating evidence including a gun of the same type used in the robbery, and the victim's military papers, savings bond, and zippo lighter.

The appellant's first allegation of error is that the evidence seized by the police was obtained under the auspices of an invalid warrant, and should have been excluded from evidence. It has been the law in Indiana since 1922, that if any property is 'secured by search and seizure under the pretext of a search warrant, which was invalid for any reason, then the property so seized could not be used as evidence against the appellant, and its admission over his objection was prejudicial error.' Callender v. State (1922), 193 Ind. 91, 138 N.E. 817; Flum v. State (1923), 193 Ind. 585, 141 N.E. 353; Wallace v. State (1927), 199 Ind. 157 N.E. 657; Rohlfing v. State (1951), 230 Ind. 236, 102 N.E.2d 199; Todd v. State (1954), 233 Ind. 594, 122 N.E.2d 343. ¹

This rule followed from Art. 1, § 11 of the Constitution of Indiana which provides as follows:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.'

It is likewise well-settled law that this right 'shall receive a liberal construction in its application to guarantee such right to the people', and that 'in obtaining and executing' search warrants, there must be strict compliance with whatever formalities are required by law.' 193 Ind. at 590, 141 N.E. at 354. The admissibility of evidence secured under a search warrant can be challenged either before trial in a pre-trial motion to suppress, or at trial by timely objection or motion to strike.

In the case before us the police performed their duties in a highly professional manner. After arresting the appellant on the street after he had been identified by the victim, they placed a guard at the door of the appellant's room until such time as they could secure a search warrant thus respecting the strong constitutional mandate to secure a warrant in all but the most extreme cases. Chimel v. Calif. (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; Trupiano v. United States (1948), 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed.2d 1663. The facts constituting probable cause to search the room were presented to the magistrate, who determined that probable cause to search did in fact exist and issued the warrant. The crucial part of the affidavit reads as follows:

'That affiant makes the above allegations on the basis of the fact that on July 30, 1969, at 2:35 a.m. he was called to the Greyhound Bus Station where affiant interviewed Mr. Everett L. Hogan, whom was robbed and hit in the face and a pistol was pulled on him and approximately three hundred dollars was taken from him by one tall Negro male. Mr. Hogan entered police car and spotted man who robbed him and made identification of man at 4th and Court Streets City of Evansville, State of Indiana, coming from the direction of the YMCA. Affiant arrested subject who stated his name was James Riddle, Jr. and he was from out of town. Arrest was made approximately twenty minutes after robbery. James Riddle, Jr. was searched and the gun and money were not found except a small amount of money. Affiant determined that James Riddle, Jr. had a room rented at the YMCA, room 314. Said YMCA is approximately three blocks from where the robbery took place. Subject had changed shirts between robbery and arrest and had taken off a yellow shirt.

'Affiant believes that the above mentioned property is being concealed in or about the above mentioned room at this time and this affidavit is for the sole purpose of obtaining a search warrant * * *.'

The search was carried out pursuant to that warrant. The invasion of the privacy of the appellant's room was done with judicial sanction so that, on the surface at least, the fundamental constitutional right of the accused 'to be secure, in their persons, houses, papers and effects' unless a warrant has been obtained was not violated. But, regardless of the excellent police procedures used in this case, there remains the question of whether the warrant was legally issued, that is, whether the officers presented sufficient evidence to the magistrate to justify the issuance of the warrant. It is this question which is before us on this appeal.

Although no pre-trial motion to suppress was filed in this case, this question was preserved by the appellant's timely objection to the introduction of the disputed evidence. After a hearing on this issue held outside the presence of the jury, the trial court denied the motion to suppress the evidence and allowed the evidence to be introduced. The appellant is here challenging that decision by the trial court, renewing his argument that the search warrant was not valid.

His argument is based on the admitted fact that the officer who procured the search warrant relied on hearsay testimony without giving the magistrate facts within his knowledge as tothe credibility of the informer, who in this case was the victim. The failure, according to the appellant, violates I.C., 1971, 35--1--6--2, being Burns § 9--602(c), which details the requirements for a warrant based on hearsay in the following manner:

'When based on credible hearsay, the affidavit shall contain reliable information supplied to the affiant by a credible person named or unnamed, and it shall contain the following: (a) affirmative allegations that the credible person spoke with personal knowledge of the matters contained therein. (b) the facts within the personal knowledge of the credible person. (c) the facts within the affiant's knowledge as to the credibility of the credible person.'

This statute while allowing hearsay evidence to be used in the obtaining of a warrant, carefully limits its use to preserve the role of the magistrate as the independent decision maker in this area. The importance of this independent role of the magistrate in this situation is fundamental to our system of justice as pointed out in Wallace v. State, supra, where the Court said:

'The whole case upon which a search warrant issues must be made by him who prays for such writ. The...