Snellgrove v. State

• Decision Date: 01 April 1991
• Docket Number: No. 64S00-8804-CR-00374,64S00-8804-CR-00374
• Citation: 569 N.E.2d 337
• Parties: Randy W. SNELLGROVE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 337

569 N.E.2d 337

Randy W. SNELLGROVE, Appellant, v. STATE of Indiana, Appellee.

No. 64S00-8804-CR-00374.

Supreme Court of Indiana.

April 1, 1991.

James V. Tsoutsouris, Public Defender, Joanne Tapocsi-Lohmeyer, Deputy Public Defender, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Following a jury trial appellant, Randy Snellgrove, was convicted on four counts of armed robbery, a Class B felony. Pursuant to an amended sentencing order, the trial court sentenced appellant to fifteen years on each count. The trial court ordered that the sentences on Counts One and Two run concurrent to each other, and that the sentences on Counts Three and Four run concurrent to each other. However, it was ordered that the sentences on Counts One and Two run consecutive to the sentences on Counts Three and Four, resulting in a total term of imprisonment of thirty years.

Appellant now brings this direct appeal in which it is claimed that the following trial court actions constituted error:

1) Admitting evidence obtained from a search of appellant's home;

2) Admitting into evidence appellant's waiver of rights form and oral confession;

3) Admitting a taped statement of the State's witness Tina Harvey in evidence;

4) Refusing to give appellant's instruction Number 2 in its entirety as tendered.

The evidence presented at trial which tends to support the verdict was as follows: Between February 22, 1987, and March 17, 1987, four convenience stores in Porter County were robbed by an armed man. Employees at the different stores all gave a similar description of the gunman's physical traits and of the procedures he followed in carrying out the robberies.

A notice was published offering a one thousand dollar reward for information leading to the arrest and conviction of persons involved in the robberies in that area. On April 12, 1987, Tina Harvey came forward, responding to the notice. Harvey informed the Portage police that she had information concerning the armed robberies that occurred in the area. Detective Ballard met with Harvey in the early morning hours of April 12. Harvey then told Detective Ballard that her husband, James Harvey, had described to her how he had gotten possession of a nine millimeter handgun, and had robbed the Zip Foods store in Porter, while acting as wheel-man. Detective Ballard tape-recorded this initial conversation with Harvey.

Later in the day on April 12, arrangements were made for Harvey to enter appellant's home while wearing a body bug and engage in conversation about the armed robberies in the area. Equipped as planned, she entered appellant's house, and conversed with him. Their conversation was monitored by the police officers outside the home. According to the testimony of Detective Ballard, who was listening in, appellant said that the "Zip Foods in Porter was one of the first ones they hit." After Harvey left appellant's home, she went by prearrangement to a nearby restaurant, where she met with the police. The events were discussed for about thirty minutes and a decision was then reached by the police that sufficient probable cause existed to make an arrest. They had no arrest or search warrant. The officers left the restaurant, returned to appellant's house, knocked on his door and were let in by appellant's fiancee, Cynthia Hatfield. Appellant and Hatfield were both arrested. Appellant was advised of his right to remain silent and to have counsel. He and Hatfield were then taken to the Portage police station.

At the stationhouse, appellant was again advised of his constitutional rights, and he signed a form acknowledging that he had been advised of his rights and understood them. He then indicated to the officers that he did not want to talk. Appellant was placed in a holding cell while Cynthia Hatfield was questioned in a room above his cell. At the hearing on appellant's motion to suppress certain evidence, appellant testified that through a vent in his cell he could hear his fiancee being interrogated by officers. Lieutenant Detective James Menn, a police officer with the Town of Porter, testified that when he went down to appellant's cell to get a final fingerprint from appellant, appellant asked him if Hatfield was cooperating with the officers upstairs. Detective Menn informed appellant that she was cooperating. A recording of Hatfield's taped statement was then played for appellant. Detective Menn testified that as appellant heard the tape, he began shaking his head and began telling the detectives about his involvement in the robberies.

Appellant asserts that the trial court erred in admitting evidence obtained as a direct result of the electronically monitored conversation between appellant and Tina Harvey which took place in appellant's home on April 12, as such monitoring constituted a violation of appellant's Fourth Amendment rights. In his brief, appellant does not specifically identify what evidence was improperly admitted. In his motion to suppress filed on September 2, 1987, however, appellant identified incriminating statements made on April 12, as evidence that ought not to be admitted because they stemmed from an unlawful seizure that violated appellant's Fourth Amendment rights.

In the present case, we find that there was no Fourth Amendment violation when Tina Harvey entered appellant's home wearing the electronic bugging device, and that such police activity was not illegal. The United States Supreme Court addressed this issue in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), and held that the Fourth Amendment provides no protection to the wrongdoer who mistakenly believes that a person to whom he voluntarily confides his wrongdoing will not reveal it. Further, in United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453, 459 (1971) (citation omitted), the Supreme Court stated:

If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case.

The Court went on to state that:

It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a "reasonable" investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an "unreasonable" and unconstitutional search and seizure.

Id. at 753, 91 S.Ct. at 1127, 28 L.Ed.2d at 459-60.

This Court has followed this approach, rejecting claims that the broadcast and recording of private conversations from a microphone and transmitter carried by a consenting participant in the conversation violates the rights of the other participants against unreasonable searches and seizures guaranteed by the Fourth Amendment. Citing White and United States v. Hodge, 549 F.2d 1161, 1167 (7th Cir.1979), this Court held that a defendant's Fourth Amendment rights are not violated when that defendant's conversations are electronically monitored by a government agent with the consent of the informant. Lawhorn v. State (1983), Ind., 452 N.E.2d 915, 918-19.

Appellant cites to Massiah v. State, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), for support of his claim that Tina Harvey's presence in appellant's home and her use of electronic transmitting equipment constituted a Fourth Amendment violation. A review of those cases, however, reveals no support for appellant's position. Massiah and Henry are cases that involve incriminating statements made by an accused to an undisclosed government informant while in custody and after indictment. Thus, the incriminating statements in those cases were made at "critical stages" of the prosecution at which time the Sixth Amendment right to the assistance of counsel had already attached. The government activities in those cases were prohibited on Sixth Amendment grounds and not on Fourth Amendment grounds.

In fact, the Supreme Court in Henry stated that "it is quite a different matter when the government uses undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior to the time charges are filed." Henry, 447 U.S. at 272, 100 S.Ct. at 2188, 65 L.Ed.2d at 123. The Court went on to cite Hoffa and White stating that the Fourth Amendment offers no protection to the wrongdoer who mistakenly believes that a person to whom he voluntarily confides his wrongdoing will not reveal it. Id. Thus, we do not find that appellant's Fourth Amendment rights were violated in the present case.

Appellant next asserts that the trial court erred in admitting his signed waiver of rights form and oral confession. Appellant contends that the waiver of rights form and the oral confession were the direct result of an unlawful arrest. Further, appellant maintains that when he signed his waiver of rights form and issued his confession, he was acting under the influence of cocaine and was under duress caused by the arrest of his pregnant girlfriend and thus the signed waiver form and oral confession were not voluntary.

Appellant is correct in his assertion that his arrest was carried out in an unlawful manner. Probable cause alone is insufficient to justify a warrantless arrest of a person in his home. Exigent circumstances must also be present. Myers v. State (1983), Ind., 454 N.E.2d 861. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court stated that "[a] greater burden is placed ... on officials who enter a home or dwelling without consent. Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the ...