State v. Smithers, No. 1269S312

Docket NºNo. 1269S312
Citation256 Ind. 512, 269 N.E.2d 874
Case DateJune 07, 1971
CourtSupreme Court of Indiana

Page 874

269 N.E.2d 874
256 Ind. 512
STATE of Indiana, Appellant,
v.
Arlie Ray SMITHERS, Appellee.
No. 1269S312.
Supreme Court of Indiana.
June 7, 1971.

[256 Ind. 513]

Page 875

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellant.

Lawrence D. Renfro, New Castle, for appellee.

DeBRULER, Judge.

The defendant was charged with the possession of marijuana under I.C.1971, 35--24--1--2, being Burns § 10--3520(c). Prior to trial the defendant filed a motion to suppress the marijuana and the evidence concerning its seizure on the grounds that it had been obtained in violation of defendant's constitutional rights. The trial court granted defendant's motion and ultimately the defendant was acquitted in a trial without jury. The State appeals on a reserved question of law pursuant to I.C.1971, 35--1--43--1, being Burns § 9-- [256 Ind. 514] 2101, alleging that the trial court erred in supressing the evidence.

The appellant did not present any evidence at the pre-trial hearing on the motion and the only two witnesses were put on by the defendant. The defendant testified that around midnight on October 17th, 1968, he was riding in a car with three other males on the streets of New Castle, Indiana, when two uniformed policemen pulled them over and checked the driver's operating license. The officers asked the occupants what they were doing and they told the police they were 'going uptown'.

Page 876

The police did not give any reason for stopping the car. The police checked only the license of the driver and apparently did not ask the age of the occupants. Officer Connors asked the defendant whether he owned a manila envelope Connors had in his hand and the defendant said no. Connors called Sgt. Mastin who arrived on the scene within minutes. Mastin examined the envelope and its contents, and asked defendant about his connection with it. The defendant told Mastin the envelope was not his and Mastin permitted the car and all four occupants to proceed on their way. The police did not search the car nor the occupants.

Sergeant Mastin testified that he was called by Officers McKinney and Connors to the scene of a stopped car at around 12:45 A.M. on October 17th. Upon arrival at the scene Mastin was given the following information by the two officers: The officers thought there were juveniles in the car out after 11:00 P.M. curfew and they stopped the car to check the occupants to see if they were juveniles. When the car was stopped Connors observed the defendant, riding in the right front seat, put his arm out the car door and drop a brown manila envelope. Connors picked it up and asked defendant about it but he denied having possession of it. Mastin testified that after his arrival at the scene he looked in the envelope and found a substance that could have been marijuana. Mastin talked to the defendant who denied ever having the envelope. Mastin then permitted the car with defendant in it to proceed on its way.

[256 Ind. 515] Appellant contends that the police legally obtained the envelope containing marijuana because the defendant had abandoned it. It is true that the police may legally seize abandoned property. Hardin v. State (1970), Ind., 257 N.E.2d 671. However, where police action triggers the abandonment, that action must be lawful or the evidence will be considered obtained in an illegal search and seizure within the meaning of the Fourth Amendment. Rios v. United States (1960), 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Williams v. United States, 99 U.S.App.D.C. 161, 237 F.2d 789 (1956); Hardin v. State, supra. For purposes of the Fourth Amendment, there is no real abandonment if there is no lawful arrest or detention in the first instance because the 'primary illegality would taint the abandonment and, as such, the abandonment could not justify the admission of the evidence.' People v. Baldwin (1969), 25 N.Y.2d 66, 302 N.Y.S.2d 571, 250 N.E.2d 62. Therefore, the crucial issue is whether the police action in stopping the car, which precipitated the abandonment of the envelope, was lawful. If the police were justified in stopping the car then there was a 'true abandonment' of the envelope by defendant, the evidence contained in the envelope was admissible in evidence and the trial court erred in suppressing it.

Since the police admittedly did not have a warrant the burden was on appellant at the pre-trial hearing to show that the police action resulting in the seizure fell within one of the exceptions to the warrant requirement of the Fourth Amendment. 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; Jeffers v. United States (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. Appellant contends it sustained this burden by showing that the police were justified in stopping the car because they were checking to see whether the occupants were juveniles out on the streets in violation of the curfew.

After hearing all of the evidence the trial court held that [256 Ind. 516] the appellant had failed to sustain its...

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47 practice notes
  • Palmore v. United States, No. 5831.
    • United States
    • 28 avril 1972
    ...State v. Dell, 258 La. 1024, 249 So.2d 118 (1971); Gustafson v. State, 243 So.2d 615, 619-620 (Fla.Dist.Ct.App.1971); State v. Smithers, 269 N.E.2d 874, 877-878 (Ind. 1971); State v. Woodford, 26 Ohio Misc. 51, 55-56, 269 N.E.2d 143, 147 (1971); Stone v. People, Colo., 485 P.2d 495-498 (197......
  • Cooper v. State, No. 2--773A170
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 novembre 1976
    ...409; Ludlow v. State (1974), 262 Ind. 266, 314 N.E.2d 750; Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133; State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d A warrantless search and seizure is lawful if the officer has probable cause to suspect the area searched contains items which t......
  • Williams v. State, No. 274S38
    • United States
    • 20 février 1974
    ...Fourth Amendment requirement of reasonableness. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874. General principles exist to guide us in making this judicial determination of reasonableness. In so doing it is well to re......
  • Carpenter v. State, No. 3-776A160
    • United States
    • Indiana Court of Appeals of Indiana
    • 2 août 1978
    ...the basis for his objection and if he neglects to do so he may not complain of the result. See, e. g., State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874; Morgan v. State (1923), 194 Ind. 39, 141 N.E. 790. Here the question is the reverse: May evidence produced after the ruling on a mot......
  • Request a trial to view additional results
47 cases
  • Palmore v. United States, No. 5831.
    • United States
    • 28 avril 1972
    ...State v. Dell, 258 La. 1024, 249 So.2d 118 (1971); Gustafson v. State, 243 So.2d 615, 619-620 (Fla.Dist.Ct.App.1971); State v. Smithers, 269 N.E.2d 874, 877-878 (Ind. 1971); State v. Woodford, 26 Ohio Misc. 51, 55-56, 269 N.E.2d 143, 147 (1971); Stone v. People, Colo., 485 P.2d 495-498 (197......
  • Cooper v. State, No. 2--773A170
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 novembre 1976
    ...409; Ludlow v. State (1974), 262 Ind. 266, 314 N.E.2d 750; Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133; State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d A warrantless search and seizure is lawful if the officer has probable cause to suspect the area searched contains items which t......
  • Williams v. State, No. 274S38
    • United States
    • 20 février 1974
    ...Fourth Amendment requirement of reasonableness. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874. General principles exist to guide us in making this judicial determination of reasonableness. In so doing it is well to re......
  • Carpenter v. State, No. 3-776A160
    • United States
    • Indiana Court of Appeals of Indiana
    • 2 août 1978
    ...the basis for his objection and if he neglects to do so he may not complain of the result. See, e. g., State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874; Morgan v. State (1923), 194 Ind. 39, 141 N.E. 790. Here the question is the reverse: May evidence produced after the ruling on a mot......
  • Request a trial to view additional results

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