Rihl v. State, 2-479A115

• Citation: 413 N.E.2d 1046
• Decision Date: 30 December 1980
• Docket Number: No. 2-479A115,2-479A115
• Parties: Craig D. RIHL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 1046

413 N.E.2d 1046

Craig D. RIHL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-479A115.

Court of Appeals of Indiana, Second District.

Dec. 30, 1980.

John L. Hess, Petit, Jones, Trout & Hess, Indianapolis, for appellant (defendant below).

Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

SULLIVAN, Judge.

Defendant-Appellant Craig Rihl was convicted on one count of possession with intent to deliver marijuana, and one count of possession with intent to deliver hashish. ¹ He was sentenced to two years in prison and fined $1,000 on each count, the sentences to run consecutively. Four issues have been presented for consideration on appeal:

1) Did the trial court err in admitting evidence seized during a warrantless search and arrest, conducted as a result of information supplied by an informant? ²

2) Did the trial court commit error in overruling Rihl's pre-trial Motion to Compel Discovery as to certain interrogatories pertaining to a "confidential reliable informant" mentioned by the State during the suppression hearing?

3) Did the trial court err in overruling Rihl's pre-trial Motion to Dismiss based upon a written agreement between Rihl and the arresting officers?

4) Did the trial court commit error in imposing consecutive sentences?

We affirm the conviction but remand to correct an error in sentencing.

I.

Rihl contends the trial court erred when it admitted into evidence the marijuana and hashish seized during a warrantless search and arrest. This contention is premised upon two arguments: 1) the State failed to show the reliability of its informant and therefore lacked probable cause to search; and 2) the police failed to demonstrate exigent circumstances to justify the warrantless search of Rihl and his subsequent warrantless arrest.

A warrantless search can only be justified by probable cause and one of the recognized exceptions to the warrant requirement. Coolidge v. New Hampshire (1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; City of Indianapolis v. Ervin (2d Dist.1980) Ind.App., 405 N.E.2d 55, 62 n.3. The State carries the burden of proving that the warrantless action fell within one of these exceptions. Bruce v. State (1978) Ind., 375 N.E.2d 1042, 1068, cert. denied, (1978) 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662; Ludlow v. State (1974) 262 Ind. 266, 269, 314 N.E.2d 750, 751-52. Similarly, when probable cause is based solely upon information supplied by an informant the State must show: 1) the informant is a generally reliable witness; and 2) the informant supplied sufficient basic facts to support a finding that more probably than not his conclusion is correct. ³ Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; see Pawloski v. State (1978) Ind., 380 N.E.2d 1230. In reviewing the trial court's determination concerning admissibility, we do not reweigh the evidence but look to the evidence most favorable to the ruling.

The record discloses that on the afternoon of Friday, August 12, 1977, Officer Gary Cook introduced Detective Charles Stanley to an informant who had agreed to set up a "buy" from Rihl. During a subsequent interview at the Hamilton County jail where the informant was a temporary resident, Stanley learned from the informant that he had purchased drugs from Rihl in the past. The informant also explained the usual procedure for the purchases in some detail:

"Q. You said, I think, earlier on direct, something about ... you then talked with him about the Defendant and you talked to him about his selling habits and things like that, ...

A. Yes, sir.

Q. Why don't you expand a little bit on that to the Court, what did you talk to him about? This is (the informant).

A. All right. I asked (the informant) to explain to me what procedure was taken when the purchase of marijuana or hashish would take place from Mr. Rihl. And he advised me that he would call ahead and that Mr. Rihl would meet him on Eller Road, south of 116th Street. He'd either be on foot or on his bicycle and that he would have a blue denim bag, which he wore around his neck, with the marijuana and hashish in it.

Q. In other words, whatever he ordered?

A. Right.

Q. In the denim bag?

A. Yes, sir."

At about 3:30 p. m. Stanley took the informant and Cook to his office where the informant called Rihl to set up the buy. Stanley left the room during the call, but Cook remained to monitor one side of the conversation. At the hearing Cook testified the call opened " 'Yeah Craig, this is ...' " He also testified he heard the informant state, apparently in response to a question from Rihl, " 'Well, I need a couple bags of marijuana and I need an ounce of hash' ".

Before proceeding with the buy Stanley and Cook searched both the informant and his car; no drugs were found. The officers then followed the informant in an unmarked patrol car to Eller Road, just south of 116th Street. Rihl was waiting to be picked up at the exact point previously identified by the informant. Officer Cook testified the blue denim bag containing the marijuana and hashish was strapped over Rihl's head. Rihl entered the informant's car which was stopped after it had traveled a short distance, Rihl was searched, and the marijuana and hashish were found in the blue denim bag hanging around his neck. Rihl's warrantless arrest followed.

A. Probable Cause

Probable cause to search can be, and often is, based upon an informant's tip. As a general rule, however, the informant's reliability must be established before a probable cause determination can be made. ⁴ Reliability can be demonstrated by either showing a past record of reliability or by verification of extrinsic facts which indicate the informer's information is trustworthy. Pawloski v. State, supra, 380 N.E.2d at 1232; Bowles v. State (1971) 256 Ind. 27, 30, 267 N.E.2d 56, 58. In Pawloski, supra at 1232, our Supreme court recently stated that this second method is preferable, perhaps mandatory, when, as here, the informant is something less than a "cooperative citizen."

While there is no evidence in the Record to support a finding of reliability based on past "track record", there is ample evidence to support such a finding under the verification method. The informant here provided an explicit, detailed description of the buy procedure, complete with reference to the pick-up point and the blue denim bag which would contain the marijuana and hashish. The informant also made a telephone call to set up the buy in the presence of one of the arresting officers. As the facts show, each and every detail of the informant's information was corroborated by the officers' own observations. This step-by-step verification more than adequately substantiates the informant's reliability and there can be no doubt his information was sufficient, once corroborated, to provide the officers with probable cause to search. See Payne v. State (3d Dist.1976) 168 Ind.App. 394, 343 N.E.2d 325. Compare Bowles v. State, supra, 267 N.E.2d at 58 (anonymous tipster failed to provide adequate facts to allow extrinsic verification).

B. Warrantless Search

It is well settled that a search warrant is a condition precedent to a valid search and seizure except where the exigencies of the situation mandate an immediate response. Ludlow v. State, supra, 314 N.E.2d at 751. The validity of a warrantless search thus turns upon the facts and circumstances of each case. United States v. Morrow (7th Cir. 1976) 541 F.2d 1229, cert. denied, (1977) 430 U.S. 933, 97 S.Ct. 1556, 51 L.Ed.2d 778.

The evidence shows the transaction involved here was the sale of controlled substances, always a potentially volatile situation regardless of the precautions taken. The evidence also shows the sale was to take place in an automobile, and that Rihl was riding in the automobile immediately prior to the search. It is axiomatic that exigent circumstances to justify an on-the-spot response by law enforcement officers are implied from the involvement of an automobile in the perpetration of a crime. ⁵ This implication is justified by the inherent mobility of an automobile and its potential to easily remove both the defendant and the evidence from the jurisdiction. As recently stated by our Supreme Court: "Given the public nature of automobile travel and the inherent mobility of automobiles, rigorous enforcement of the warrant requirement is not necessary." Rogers v. State (1979) Ind., 396 N.E.2d 348, 352; Johnson v. State (3d Dist.1975) 163 Ind.App. 684, 688, 325 N.E.2d 859, 861. Compare Ludlow v. State, supra (warrantless search of a house struck down for lack of exigent circumstances). The exigency of the situation here was further enhanced by the fact that had Rihl been allowed to leave the car, the police would have been presented with a Hobbesian Choice: pursue Rihl in the hope that he still has the drugs; or pursue the informant in the car on the chance that Rihl's departure was prearranged and the informant was not as trustworthy as the officers were led to believe. We think the officers acted correctly in avoiding this dilemma.

Given the potential dangers of the situation, a controlled substance sale, coupled with the exigent circumstances involving the automobile, we must conclude that the State sustained its burden of showing the existence of an exception to the warrant requirement. ⁶ We can find no error in the trial court's evidentiary ruling.

II.

Rihl next contends the trial court erred in overruling his Motion to Compel Discovery, i. e., certain interrogatories sought to be propounded to the State dealing with the identity and reliability of a second "confidential reliable informant." Rihl asserts the State bolstered its case by referring to this second informant during the suppression hearing, and relies on Glover v. State (196...