Sizemore v. State

• Decision Date: 19 March 1974
• Docket Number: No. 1--973A169,1--973A169
• Citation: 308 N.E.2d 400,159 Ind.App. 549
• Parties: Mark SIZEMORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 400

308 N.E.2d 400

159 Ind.App. 549

Mark SIZEMORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1--973A169.

Court of Appeals of Indiana, First District.

March 19, 1974.

Rehearing Denied April 23, 1974.

Ferd Samper, Jr., Samper & Samper, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., David A. Miller, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendant-appellant Mark Sizemore appeals from a conviction of possession of dangerous drugs, to-wit: less than twenty-five grams of marijuana, and presents the following issues for review:

1. Whether the trial court erred in overruling appellant's motion to quash the charging affidavit.

2. Whether the trial court erred in overruling appellant's motion to suppress evidence discovered on his person through a search incident to arrest.

3. Whether the evidence was sufficient to prove the identity of the alleged drug substance.

A search of the record to determine the facts most favorable to the State reveals the following sequence of events leading up to appellant's arrest.

While on patrol duty in the early morning hours of January 16, 1972, officers Terry Worley and John Earl of the Connersville Police Department observed a red van pull away from the curb in a fast manner. Pulling in behind the van, they noticed that one of its tail lights was not illuminated. While following the van, they observed it cross the center line of the road at least three times. At one point, the van was driven left of the center line for approximately three blocks. The officers then stopped the vehicle on the basis of the faulty tail light and erratic driving.

Appellant, the driver and sole occupant of the vehicle, was immediately arrested for the violation of operating the vehicle with the tail light burned out. Officer Worley observed appellant as he was being questioned by officer Earl. Worley testified that on the basis of appellant's driving and manner during questioning, he formed the opinion that appellant was driving under the influence and decided to place him under arrest for that offense.

Prior to making a formal arrest and placing appellant in the patrol car, officer Worley conducted a pat down search of appellant's person. As he patted the front of appellant's clothing, Worley discovered a bulge in his shirt pocket. To Worley's inquiry concerning what was in the pocket, appellant responded that he did not know. Worley then reached into appellant's pocket and removed a hand rolled cigarette which was later identified by expert testimony as containing marijuana.

Appellant was then informed that he was under arrest for driving while under the influence and illegal possession of marijuana. After being advised of his constitutional rights, appellant was placed in the patrol car and taken to police headquarters.

Trial by court on a two count affidavit resulted in finding of not guilty on the charge of driving under the influence of dangerous drugs and guilty on the charge of possessin of marijuana.

ISSUE 1.

Prior to trial, appellant filed a motion to quash the affidavit on the grounds that it did not state the offense charged with sufficient certainty. Error is now alleged in the decision of the trial court overruling the motion.

That part of the affidavit to which the motion was directed charges that appellant '. . . did then and there unlawfully have possession of or have under his control a certain dangerous drug, to-wit: less than 25 grams of Marijuana, . . ..' Appellant submits that the affidavit fails to state a public offense due to the insertion of the phrase 'have under his control,' since I.C.1971, 16--6--8--3 Ind.Ann.Stat. § 35--3333(c) (Burns 1973 Cum.Supp.) proscribes only 'possession' or 'sale' of dangerous drugs. The crux of appellant's contention is that there is a vast difference in meaning between 'possession' and the phrase 'have under his control'. However, appellant has offered no argument to enlighten us as to this difference. Moreover, we note that 'control' is specified as an element of 'possession' at Black's Law Dictionary, p. 1325 (Rev.4th Ed. 1968).

The relevant question for our determination is whether the affidavit is sufficient to inform a man of common intelligence that he is being charged with possession of a dangerous drug and therefore apprise him of the nature of the charges that he is to defend. In our opinion, this question must be answered in the affirmative. See, Thomas v. State (1968), 251 Ind. 76, 238 N.E.2d 20.

Further, appellant's contention must fail since he has failed to demonstrate any prejudice resulting from this alleged defect in the affidavit. To constitute grounds for reversal, defects or imperfections in the affidavit must have prejudiced the substantial rights of the defendant. Thorne v. State (1973), Ind., 292 N.E.2d 607.

The record reveals that appellant was clearly aware of the nature of the crime with which he was being charged. We therefore conclude that the trial court did not err in overruling appellant's motion to quash.

ISSUE 2.

Appellant next argues that the trial court erred in overruling his motion to suppress the evidence seized from his person at the time of his arrest.

The question of the validity of a search of an arrestee's person in relation to Fourth Amendment constitutional guarantees was recently considered by the United States Supreme Court in United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, and a companion case Gustafson v. Florida (1973), 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456. These cases centered upon the admissibility, in prosecutions for unlawful possession of drug substances, of evidence seized from the defendants' persons during searches incident to arrests for traffic code violations. ¹

The court found that in each case the evidence was seized as a result of a lawful search incident to arrest. In Robinson, it was held:

'. . . The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment.' ²

In arriving at this holding, the court emphasized the historical distinction between a search of the person of the arrestee and a search of the area beyond his person but within his control.

Through an examination of previous decision dealing with the subject, Justice Rehnquist concluded:

'Throughout the series of cases in which the Court has addressed the second proposition relating to a search incident to a lawful arrest--the permissible area beyond the person of the arrestee which such a search may cover--no doubt has been expressed as to the unqualified authority of the arresting authority to search the person of the arrestee. E.g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); Go-Bart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).' (Our emphasis.)

In support of this conclusion, the court quoted the following statement from Chimel, the most recent of the cases considering the validity of a search of the area beyond the person of the arrestee:

'When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.'

Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, was distinguished since it dealt not with a search incident to an arrest, but rather with a 'frisk' incident to an investigative stop based on less than probable cause to arrest. The court noted that the Terry opinion:

'. . . explicitly recognized that there is a 'distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons':

'The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (Mr. Justice Fortas, concurring). Thus it must be limited to that which is necessary for the discovery of weapons...