Ruhl v. State
| Decision Date | 02 December 1974 |
| Docket Number | Nos. 3-1273A163,3-1273A164,s. 3-1273A163 |
| Citation | 162 Ind.App. 280,319 N.E.2d 347 |
| Parties | Pauline A. RUHL and William S. Young, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Thomas L. Ryan and Harold W. Mayers, Ft. Wayne, for defendants-appellants.
Theo. L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendants-appellants Pauline A. Ruhl and William S. Young appeal from convictions of theft in violation of IC 1971, 35-17-5-3(f), Ind.Ann.Stat. § 10-3030(f) (Burns' Supp. 1974). Following a consolidated trial to the court, appellants were found guilty and sentenced to imprisonment for a term of not less than one nor more than ten years, and committed to the Indiana Reception Diagnostic Center in the custody of the Department of Correction for classification and confinement. Thereafter appellants' motion to correct errors was overruled and this appeal, which has been consolidated for argument and determination, was perfected.
An examination of the evidence most favorable to the State discloses that one Mae Soil and appellants Pauline A. Ruhl and William S. Young had spent the night of November 29, 1972, at the Holiday Inn in Michigan City, Indiana, in rooms registered to a Nancy J. Davis. During the same night, restaurant expenses were charged to such rooms. On the next day, November 30, 1972, the Holiday Inn management contacted the rooms by telephone regarding payment of the accrued charges. Following the inquiry, Mrs. Oneta F. Kollar, manager of the Holiday Inn, made efforts to ascertain whether the automobile listed on the room registration card was still present at the motel and subsequently found that the automobile, a blue 1971 Cadillac with Illinois license was, in fact, present.
At approximately 4:45 P.M. on the afternoon of November 30, 1972, Officer Robert Sharritt of the Michigan City Police Department received a radio report regarding a 'Cadillac with Illinois plates' that was involved in a 'failure to pay at the Holiday Inn.' Subsequently the officer encountered an automobile in the area of 'the Marquette Mall' which matched the description he had earlier received. After relating this fact to the police station, Sharritt remained within view of the automobile and awaited the arrival of detectives. During the officer's observation, two young ladies whom Sharritt later identified as Pauline Ruhl and Mae Soil entered the automobile. When the vehicle began to move backward, Officer Sharritt positioned his squad car in such manner as to prevent it from moving further. He thereafter asked the driver, Pauline Ruhl, for her driver's license and registration. Presently, Detective Edwin M. Bigda arrived at the scene and took the automobile's occupants into custody. Later Ruhl and Soil were identified at the Holiday Inn and were placed under arrest for theft of services.
Officer Sharritt testified that the automobile had been locked prior to the arrival of Ruhl and Soil at the scene. Following their removal by Detective Bigda, Officer Sharritt remained with the automobile until he was replaced by Officer Mary Susan Bigger who thereafter maintained continuous surveillance over the vehicle. At approximately 6:50 P.M., Officer Bigger observed the arrival of appellant Young in a taxicab. She testified that Young unlocked the automobile in question, entered it and proceeded to exit the parking lot at the Mall. Officer Bigger followed the Young automobile and, during her progress, was rejoined by Officer Sharritt. The officers eventually stopped Young and requested that he follow Officer Sharritt to the police station. Upon his arrival at the police station, Young parked the automobile, locked it and proceeded inside. He was thereafter placed under arrest for theft of services. During the course of the investigation which followed his arrest, the police sought to determine the ownership of the vehicle which Young had driven. At such time, certain objects which included a box containing several articles of clothing and price tags was discovered inside of the automobile. These items were later seized after a warrant had been obtained which authorized a search of the automobile. It was subsequently determined that several of the articles of clothing which were introduced at trial over appellants' objection had been removed from a store without having been purchased.
The first issue to be considered is whether the objects seized from the inside of the automobile (State's Exhibits Nos. 1 through 9) were obtained as the result of an illegal search and seizure and were, therefore, improperly admitted into evidence at appellants' trial.
Appellants preface their arguments with regard to this issue with the contention that the record fails to disclose evidence of a warrant for search and seizure pertaining to the automobile and its contents. It is asserted that this court must regard the warrant which appears in the record among pretrial entries, as non-existent for the reason that it was not introduced into evidence by the State at trial.
However, an examination of the transcript of testimony before the trial court discloses that neither the existence nor the validity of the search warrant on its face were matters in controversy prior to this appeal. Direct testimony that a warrant was, in fact, issued authorizing a subsequent search of the automobile and a seizure of the evidence in dispute was not objected to by appellants at trial and is a matter of record. Under these circumstances, it was not incumbent upon the State to introduce the actual document into evidence, and testimony regarding the warrant must be considered sufficient proof of its existence.
Further, it must be concluded that the evidence in question was not discovered as the result of a search and was not, thereafter, seized by illegal means. In this regard, the record indicates that at approximately 7:10 to 7:15 P.M. on November 30, 1972, appellant Young was formally arrested at the police station. At approximately 7:30 P.M. Officer Bigda proceeded to the police station parking lot in an attempt to ascertain the ownership of the automobile which Young had driven. The officer testified that he checked the ownership of the vehicle by examining the automobile's vehicle identification number located 'on the left front windshield.' Darkness required his use of a flashlight in the process. During his investigation, the officer noticed 'a box in the back seat on the righthand side with items of clothing and some tags sticking out of the box.' He also observed that the 'tags were intact with both halves together.' Such observation was made from the outside of the automobile and did not involve an entry of the vehicle. Officer Bigda testified that he was aware of the fact that at certain stores 'they have a double tag, and when they sell this item they remove one-half of the tag.' Following his discovery of the items, the officer requested that appellant-Young give his consent to a search of the automobile. After this request was refused, Officer Bigda obtained a search warrant authorizing the subsequent seizure of the evidence in dispute.
Under what has become known as the 'plain view doctrine' evidence which is observed in plain view by an officer right-fully in a position to have such view is not regarded as the product of a search. United States v. Conner (7th Cir. 1973), 478 F.2d 1320; Marshall...
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Gaddie v. State
...n.1. 5 At the other extreme of the spectrum, however, this Court has not always recognized a distinction. In Ruhl and Young v. State (3d Dist.1974) 162 Ind.App. 280, 319 N.E.2d 347, the Third District applied the inference from possession of recently stolen property to affirm convictions fo......
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Young v. State
...the Honorable C. T. Kitowski, Special Judge. Both appealed and the Third District Court of Appeals affirmed their convictions in 1974, at 319 N.E.2d 347. Each has filed a petition to transfer. The petition of Ruhl is denied. The petition of Young is Appellant Young contends that the convict......