Smith v. State, 1069S228

• Docket Nº: No. 1069S228
• Citation: 271 N.E.2d 133, 26 Ind.Dec. 275, 256 Ind. 603
• Case Date: July 14, 1971
• Court: Supreme Court of Indiana

Page 133

271 N.E.2d 133 256 Ind. 603 Edmond L. SMITH, Appellant,
v.
STATE of Indiana, Appellee. No. 1069S228. Supreme Court of Indiana. July 14, 1971.
Rehearing Denied Sept. 15, 1971.

[256 Ind. 605]

Page 135

Paul G. Wallace, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Edward Squier Neal, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Judge.

Appellant was charged by affidavit with two counts of first degree burglary. Trial by jury in the Lake County Criminal Court resulted in a conviction on both counts and appellant was sentenced to ten to twenty years in prison on each count.

A. Appellant's first contention is that the trial court erred in denying appellant's motion to suppress certain evidence seized by the police from appellant's car after his arrest.

Since the items were taken from appellant's possession without a warrant the burden was on the appellee at the suppression hearing to show that the police action fell within one of the exceptions to the rule requiring a warrant prior to a search and seizure, e.g., search incident to a valid arrest. State v. Smithers (1971), Ind., 269 N.E.2d 874; Vale v. Louisiana (1970), 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409; Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; United States v. Jeffers (1951), 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; McDonald v. United States (1948), 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. The appellee's evidence concerning the events leading up to the seizure was as follows: Officer Almutis of the Gary Police Department, testified that he and his driving partner Officer Doolittle, were on duty at approximately 4:00 A.M. the morning of June 28, 1966, when they heard a radio dispatch concerning a burglary and assault on a woman at 357 Pierce Street in Gary. The radio dispatch described a 1959 Chevrolet stationwagon, license no. 45G7127, driven by a male, 59 years old, 160 lbs., in green work [256 Ind. 606] clothes with a dark green or gray shirt with long sleeves. Almutis and Doolittle immediately went to the area to back up the district car. As they drove west on 3rd Avenue, one and one-half blocks from the scene of the crime, they noticed a 1959 Chevrolet stationwagon going west on the next street over to the north of 3rd Avenue. Traffic at that time was very light. As that car approached the intersection with the north-south cross street, Polk Street, it hesitated and then made a right hand turn north onto Polk Street. Almutis testified that as the car turned the streetlight enabled him to see that the driver was thin built, wearing dark clothes and a shirt with long sleeves. The officers sat at the intersection of 3rd Avenue and Polk Street and saw the stationwagon proceed north on Polk Street and

Page 136

stop in the street, with its lights on, some distance from the intersection between Polk and the next east-west street, 2nd Avenue. Almutis and Doolittle decided to investigate the car but could not turn onto Polk Street and follow the stationwagon because of a fence, so they went west to the next street, north to 2nd Avenue and turned east. As they proceeded east on 2nd Avenue they saw the stationwagon turn west onto 2nd Avenue off of Polk Street without stopping for a stop sign and at this time its lights were off. The officers turned on the red lights and siren and stopped the stationwagon. Both officers testified that Doolittle told the driver, the appellant, that he had run a stop sign and wanted to see his license. The appellant said he had no driver's license and Doolittle asked him to step out of the car and arrested him for driving without a license. Doolittle asked appellant for the registration papers and appellant said there were none. When appellant stepped out of the car the officers noticed that he had no shoes on and his socks were wet. While appellant was standing there Officer Almutis flashed a light on the front seat and saw a green cloth mask, a screwdriver, a pair of gloves, and a tightly folded ten dollar bill. The officers then handcuffed appellant and seized those items.

[256 Ind. 607] Appellant first argues that those items were seized in violation of his Fourth Amendment right to be free from unreasonable searches and seizures, in that the traffic arrest was invalid because a mere pretext to justify a search; second, appellant argues that they were not seized within the permissible scope of a search incident to a traffic arrest.

It has been held that a pretext arrest occurs when the police make an arrest for a minor offense, such as a traffic violation, and the surrounding circumstances show that the arrest is only a sham or a front being used as an excuse for making a search for evidence of a different and more serious offense for which no probable cause to arrest exists. U.S. v. Santo (1971), U.S.C.M.A., 8 Cr.L. 2393; U.S. v. Weshenfelder (1971), U.S.C.M.A., 9 Cr.L. 2018; Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir., 1968); Green v. United States, 386 F.2d 953 (10th Cir., 1967); Taglavore v. United States, 291 F.2d 262 (9th Cir., 1961); Henderson v. United States, 12 F.2d 528 (4th Cir., 1926). The concept of a pretext arrest is a difficult one because it assumes an objectively valid arrest is rendered invalid due to the motivations of the arresting officers. The issue only arises where the search can only be justified as one incident to the arrest for the minor offense. Therefore, we do not reach that issue if at the time the officers stopped the car they had probable cause to arrest appellant for the burglary and assault and if the items were seized in a valid search incident to that arrest.

The test for probable cause to make an arrest is whether at the time of the arrest the facts and circumstances within the knowledge of the officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man of reasonable caution in believing that the arrestee had committed or was committing an offense. Williams v. State (1969), Ind., 253 N.E.2d 242; Peterson v. State (1968), 250 Ind. 269, 234 N.E.2d 488; Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d [256 Ind. 608] 142. The following evidence presented by the appellee clearly meets that test.

At approximately 4:00 in the morning, within minutes after the crime, the investigating officers at the scene radioed a description of the car and the burglar. Almutis and Doolitle heard that broadcast and were therefore looking for a '59 Chevrolet stationwagon, license plate, 45G7127, driven by a 59 year old, 160 lb. male, dressed in...