Stinchfield v. State
| Decision Date | 06 October 1977 |
| Docket Number | No. 1-177A13,1-177A13 |
| Citation | 367 N.E.2d 1150,174 Ind.App. 423 |
| Parties | Larry Edward STINCHFIELD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Glenn A. Grampp and James D. Lopp, Jr., Evansville, for appellant.
Theo. L. Sendak, Atty. Gen., Gerald M. Arthur, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant, Larry Stinchfield, was charged by information, tried by jury, and convicted of four counts of illegal possession of a controlled substance. 1 Stinchfield was sentenced to the Indiana Department of Correction for a determinate period of five years and fined a total of $4,000. We reverse, having found that the trial court erred in overruling the defendant's motion to suppress certain evidence acquired by the State pursuant to a seizure of items from the defendant's residence; accordingly, we will not discuss the defendant's allegations of error which do not concern the dispositive issue of this appeal.
The question before the court is whether the defendant's conviction resulted from the trial court's allegedly erroneous admission of evidence which, the defendant asserts, was the "fruit" of an illegal seizure by the Evansville police in violation of his rights under the Fourth and Fourteenth Amendments to the U. S. Constitution and under art. 1, § 11 of the Indiana Constitution.
The facts most supportive of the trial court's overruling of Stinchfield's motion to suppress are as follows:
At the time of the contested search and seizure, Stinchfield lived alone, renting the front rooms of a house in Evansville. On September 16, 1975, at approximately 4:00 P. M., Officer Trible of the Evansville Police Department, together with a paid, confidential "informant", drove to Stinchfield's residence to obtain a controlled substance. The record reveals that the "informant" was actually a part-time agent of the police (sometimes known as a "contingent-fee" agent), for he was paid "(b)ased according to how much time he puts in and the importance more or less, of the work he does." Trible and the informant had no search warrant with them at this time.
The pair arrived near Stinchfield's residence, and Trible searched the informant to be certain that the latter had no drugs on him prior to his entry into the defendant's apartment. The informant thereupon left Trible in the car and proceeded to the house. Unfortunately, the record becomes so unclear at this point that we could only speculate on the nature of the agent's actions while within Stinchfield's home. Trible's testimony on this point was as follows:
"Q. Was the purpose in taking the informant to Mr. Stinchfield's residence to secure some type of a controlled substance?
A. Yes.
Q. Now, Officer, at the time you testified to here, at approximately four o'clock on the afternoon of September the 16th, 1975 when you and this informant known as Steve Brown 2 went essentially to Mr. Stinchfield's residence, did you at that time have a search warrant?
A. No.
Q. Now, at some time well strike that, let me go back here. When your informant went to Mr. Stinchfield's residence on the date in question and at the time in question, did you see him enter the residence?
A. Yes.
Q. Did you see him return?
A. Yes.
Q. Now, what, if anything, did this informant give to you when he returned from Mr. Stinchfield's residence?
A. He gave me one Fastin capsule."
Other evidence concerning the informant's entry is contained in the affidavit (describing the same incident) used by Trible to obtain a search warrant for Stinchfield's residence. This affidavit, which was admitted into evidence on the defendant's motion, reads in pertinent part as follows:
"Affiant (Trible) states that he bases his belief on the following: that within 48 hours immediately prior to making application to this warrant, affiant accompanied a confidential and reliable informant to said (Stinchfield's) premises where he conducted a search of said reliable and credible informant finding no controlled substances and personally observed said informant go into the above described premises, and after a few minutes said informant returned and gave affiant a blue and white capsule which the informant said he obtained in said apartment and that he observed other such capsules and other types of capsules in said apartment." 3
Trible further testified that he subsequently had the fastin capsule tested, and upon learning of its content, used this information to obtain the search warrant for Stinchfield's apartment. All information in the affidavit for the search warrant was the result of the informant's September 16th entry into Stinchfield's residence and his removal therefrom of the fastin capsule. Trible executed the warrant at 11:00 P. M. on September 16th, and the contraband he found on the defendant's premises forms the basis for Stinchfield's conviction.
Stinchfield argues that the trial court has committed reversible error in overruling his motion to suppress all evidence gained from the second search of his home (pursuant to the warrant); he contends that since the second search was the product solely of the informant's illegal removal of the fastin capsule from the home on the same day, all evidence found pursuant to the second search was the "fruit" of an illegal seizure.
By filing his motion to suppress, Stinchfield sought to establish that the search and seizure pursuant to the warrant were illegal; he contends that he failed in this endeavor due to the following erroneous assumptions of the trial court: (1) the trial court evidently assumed that the burden was on the defendant to establish the illegality of the search; and (2) although Stinchfield attempted to show the illegal nature of the police action, he was prevented from doing so by the trial court's refusal over the defendant's repeated motions and requests to require the State to disclose the name of, and thus to produce for cross-examination, the confidential agent. In short, argues Stinchfield, the State is concealing its illegal seizure behind the so-called "informant's privilege."
It should be noted that the case at bar differs from other cases wherein the informant, or undercover agent, enters a suspect's house on the latter's invitation, and then purchases, or otherwise acquires contraband with the consent of the suspect (whether or not the suspect is cognizant of the informant's subterfuge). In such cases the informant usually delivers the acquired substance to an officer who then might procure a search warrant for the suspect's home. See Mills v. State (1975), Ind.App., 325 N.E.2d 472, and cases therein cited. However, the record of the instant case, in contrast to Mills, supplies no information regarding the propriety of the informant's conduct while within Stinchfield's home, and we will not speculate on his manner of obtaining the drugs in question.
Furthermore, it should be noted that although there is a distinction between searches by the State, on the one hand, and searches by private individuals on the other, this distinction is not pertinent to the case at bar. Here the agent's action was inextricably that of the State. Machlan v. State (1967), 248 Ind. 218, 225 N.E.2d 762; Zupp v. State (1972), 258 Ind. 625, 283 N.E.2d 540. In Machlan the court held a search invalid when it appeared that the search was undertaken by a private person at the instigation of the police. The Zupp court found a search to be valid although the defendant's landlord, who had searched the defendant's apartment and obtained incriminating evidence against the defendant therein, acted without the defendant's consent. This search was upheld despite the fact that the landlord had been an informant for the police in the past. The court noted that the landlord, at the time of the search, was not in the employ of the State, nor did he act with police authorization. These facts distinguish Zupp from the present case. Finally, it was recognized in Ortez v. State (1975), Ind.App., 333 N.E.2d 838, that there is a distinction between "informers, and those who are somewhat euphemistically referred to as 'special employees'." That is, between citizens who volunteer casual observations or suspicions, and those paid by the police over a period of time, to perform designated functions. In view of these authorities, there can be no doubt that the informant was actually an agent of the State when he entered Stinchfield's home and removed the fastin capsule.
At Stinchfield's suppression hearing the State took the position that the defendant had the burden of proving that a search and seizure actually had occurred when the agent obtained the fastin capsule; the State also asserted that the defendant had not met this burden. On appeal, the State now urges us to accept the proposition that Stinchfield consented to the seizure. We find no merit in either of the State's arguments; rather, we agree with the defendant that his motion to suppress should have been sustained in view of the meager facts before the court at the suppression hearing.
We again emphasize that in reviewing a trial court's ruling on a question of fact, this court will not reweigh the evidence nor decide questions concerning the credibility of witnesses. Young v. State (1975), Ind., 332 N.E.2d 103, and cases therein cited. Rather, it is the proper function of this court to look to that evidence most supportive of the trial court's holding, together with all logical and reasonable inferences which may be drawn therefrom, and to determine whether that evidence is sufficient in probative value to establish the facts relied upon by the State. Young, supra; Gregory v. State (1972), 259 Ind. 295, 286 N.E.2d 666, and cases cited therein.
Considering the evidence introduced on the issue of the legality of the agent's entry and seizure, we hold, as a matter of law, that such...
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