Timmons v. State

Decision Date07 February 2000
Docket NumberNo. 12A04-9904-CR-165.,12A04-9904-CR-165.
Citation723 N.E.2d 916
PartiesJay M. TIMMONS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Richard D. Martin, Miller & Martin, Frankfort, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana, Attorneys For Appellee.


BROOK, Judge

Case Summary

Appellant-defendant Jay M. Timmons ("Timmons") appeals from the trial court's denial of his motion to suppress evidence, his petition for judicial review of the chemical breath test refusal determination, and his motion to dismiss the State's charge of driving while suspended as a Class D felony.

We affirm in part and reverse in part.


Timmons presents three issues for our review, which we restate as the following four:

(1) whether the telephonic arrest warrant was defective for failure to comply with IND.CODE § 35-33-5-8;

(2) if so, whether the trial court erred when it denied Timmons' motion to suppress evidence obtained following a warrantless arrest inside his home;

(3) whether the trial court erred in finding that Timmons refused to submit to a chemical breath test; and

(4) whether the trial court erred when it denied Timmons' motion to dismiss the State's charge of driving with a suspended license.

Facts and Procedural History

On the evening of May 10, 1998, Officer Robert Mitchell ("Officer Mitchell") of the Frankfort Police Department received a dispatch regarding two hit-and-run accidents: one that had occurred in the 300 block of Alhambra Avenue and a second that had occurred at the intersection of Second Street and Freeman. Upon his arrival on the scene, Officer Mitchell was informed by several witnesses that Timmons had been the driver of the hit-and-run vehicle now parked in front of his Second Street residence. One of the witnesses was Sandy Cornett, a neighbor who lived across the street from Timmons and with whom Officer Mitchell was familiar. Officer Mitchell determined that the car parked in front of Timmons' residence matched the description given to him by the dispatcher and observed property damage to the car consistent with damage reported from the two accident sites. Shortly thereafter, Timmons' sister arrived on the scene and confirmed that Timmons was inside his house and refusing to come out.

Officer Mitchell then arranged a three-way telephone call between himself, the police dispatcher, and Clinton Superior Court Judge Kathy R. Smith ("Judge Smith"). During the tape recorded conversation, Officer Mitchell testified under oath to the facts surrounding the hit-and-run accidents and that in light of the witness statements, matching vehicle descriptions, and property damage, he had probable cause to suspect Timmons as the driver. The colloquy between Judge Smith and Officer Mitchell concluded as follows:

JUDGE SMITH: O.K. Then ah, I'll issue an arrest warrant for his arrest, I'll go ahead and sign it and ah you'll need to have it in hand, you have probable cause to arrest, well I'm sorry, one step ahead Bob. This Freeman Street the address we're talking about is in Clinton County, Indiana, is that correct?
OFFICER: That's correct.
JUDGE SMITH: You have probable cause to arrest, to go in the house and arrest . . . Mark J. Timmons [sic ] for leaving the Scene of an Accident Count one and Leaving the Scene of an Accident Count two and then any other crimes [that] . . . would follow from that, O.K.?


JUDGE SMITH: And let's put his bond at ten thousand dollars, O.K.
JUDGE SMITH: And you don't physically have to have that [arrest warrant]. I'll also call the jail and tell them I've authorized the arrest.

Thereafter, police officers entered Timmons' residence through an unlocked door, found Timmons hiding in a closet, and arrested him. After Timmons was placed in the front seat of a patrol car, Officer Jason Albaugh ("Officer Albaugh") of the Frankfort Police Department asked him to submit to a portable breath test, which Timmons declined. At the book-in counter of the jail, Officer Albaugh requested that Timmons take a chemical breath test on the department's BAC datamaster; Timmons again declined. In his alcohol influence report, Officer Albaugh noted Timmons' refusal to submit to any sobriety tests as well as his odor of alcohol, bloodshot eyes, and unsteadiness.

Timmons was charged with multiple counts arising out of this incident, including one count of operating a vehicle while intoxicated as a Class D felony,1 one count of driving with a suspended license as a Class D felony,2 and two counts of failure to stop after an accident as Class A and B misdemeanors, respectively.3 In addition, Judge Smith4 found probable cause to believe Timmons had refused to take a chemical breath test, a determination that would result in further suspension of Timmons' driving privileges.

On December 2, 1998, Timmons moved to suppress "any evidence . . . resulting from the warrantless arrest," contending that the telephonic warrant was invalid and that as such, the officers' arrest inside his home was illegal. The trial court denied Timmons' motion to suppress, finding that although the arrest warrant was defective, it was not fatally so. Timmons subsequently petitioned the trial court to review Judge Smith's chemical breath test refusal determination, and also moved to dismiss the charge of driving while suspended, both of which the court denied. Timmons now appeals.5

Discussion and Decision
I. Telephonic Arrest Warrant

Timmons contends that the telephonic arrest warrant was defective because it did not comply with IND.CODE § 35-33-5-8, which outlines the procedure for establishing probable cause orally or by telephone. We agree. IND.CODE § 35-33-5-8 provides in relevant part:

(a) A judge may issue a search or arrest warrant without the [probable cause] affidavit required under section 2 of this chapter, if the judge receives sworn testimony of the same facts required for an affidavit . . .

(2) orally by telephone or radio[.] . . .

(b) After reciting the facts required for an affidavit and verifying the facts recited under penalty of perjury, an applicant for a warrant under subsection (a)(2) shall read to the judge from the warrant form on which the applicant enters the information read by the applicant to the judge. The judge may direct the applicant to modify the warrant. If the judge agrees to issue the warrant, the judge shall direct the applicant to sign the judge's name to the warrant, adding the time of issuance of the warrant. . . .

(d) If a warrant is issued under subsection (a)(2), the judge shall record the conversation on audio tape and order the court reporter to type or transcribe the recording for entry in the record. The judge shall certify the audio tape, the transcription, and the warrant retained by the judge for entry in the record. . . .

(f) The court reporter shall notify the applicant who received a warrant under subsection (a)(2) . . . when the transcription or copy required under this section is entered in the record. The applicant shall sign the typed, transcribed, or copied entry upon receiving notice from the court reporter.

The telephonic warrant provisions were intended to encourage the procurement of warrants in situations involving exigent circumstances, when a warrant might not otherwise be sought. Cutter v. State, 646 N.E.2d 704, 712 (Ind.Ct.App.1995), trans. denied.

Our review of the record establishes that none of the requirements identified in IND.CODE § 35-33-5-8 were complied with, save the requirements that Officer Mitchell testify under oath and that his conversation with Judge Smith be recorded. Officer Mitchell did not read from a warrant form as required by the statute, nor did Judge Smith advise Officer Mitchell to affix her signature to the warrant. Indeed, it appears that no warrant was ever issued in this case, either before or after Timmons' arrest, and neither the judge nor Officer Mitchell certified the audio tape and transcription of their conversation. Moreover, the transcript was never made part of the record until it was admitted into evidence at the suppression hearing eight months later.

While in the past we have declined a defendant's "invitation to elevate form over substance," we have done so only after concluding that "the taping of the telephonic probable cause hearing was in substantial compliance with IND.CODE § 35-33-5-8." Id. (emphasis added). In Cutter, we held that the telephonic search warrant was valid despite belated certification and attestations, because the goals IND.CODE § 35-33-5-8 was intended to insure were still met. Id. at 713. Here, however, there was a near total failure to comply with the procedures set out in IND.CODE § 35-33-5-8; there was no warrant form, signature, certification, or attestation, belated or otherwise. Accordingly, we conclude that the telephonic arrest warrant in this case was defective, and should more appropriately be characterized as nonexistent.

II. Motion to Suppress

Nevertheless, our determination of this issue does not require us to reverse the trial court's denial of Timmons' motion to suppress. Initially, we concede that arresting Timmons inside his home without a valid arrest warrant violated his rights under the Fourth Amendment of the United States Constitution.6See Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (Fourth Amendment prohibits police from making warrantless and nonconsensual entry into suspect's home in order to make routine felony arrest even when police have probable cause to do so). Indeed, "[t]here is no question that police are required by the federal constitution to obtain a warrant to arrest a suspect who hunkers down inside his home and refuses to leave or answer the door." Cox v. State, 696 N.E.2d 853, 858 (Ind.1998). This rule, however, is not a "per se rule"...

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