Wagner v. State
| Decision Date | 25 January 1968 |
| Docket Number | No. 30798,30798 |
| Citation | 233 N.E.2d 236,12 Ind.Dec. 596,249 Ind. 457 |
| Parties | Frank WAGNER, Appellant. v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John J. Dillon, Atty. Gen., of Indiana, Kenneth M. Waterman, Deputy Atty. Gen., Indianapolis, for appellee.
Frank Wagner, Appellant, was charged by affidavit it filed in Division Two of the Marion County Criminal Court with the crime of 'Violation of the 1935 Narcotic Act, (as amended)', 'Count One'. Omitting the formal parts, said affidavit was as follows:
'BE IT REMEMBERED, that, on this day, before me, Noble R. Pearcy, Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came William Owen, who being duly sworn, upon his oath says that Frank Wagner, on or about the 5th day of December, A.D. 1964, at and in the County of Marion in the State of Indiana, did then and there unlawfully and feloniously have in his possession and under his control a narcotic drug, to-wit: HEROIN, and was not authorized by any law of the United States of America or the State of Indiana to have such narcotic drug in his possession or under his control. That the said Frank Wagner has been heretofore convicted of the offense of selling narcotic drugs in violation of the laws of the United States of America, such conviction being on the 19th day of February, 1959, Cause No. IP 58--CR--140 in the United States District Court, Southern District of Indiana, Indianapolis Division, then and there being contrary to the form of the Statute in such Thereafter, on March 2, 1965, after having waived arraignment and a plea of not guilty, Appellant filed a 'Verified Motion to Suppress and Reject Evidence', upon which Motion evidence was heard and thereafter said Motion was overruled.
case made and provided and against the peace and dignity of the State of Indiana.'
Trial to the court was then had, at the conclusion of which attorneys for both sides waived argument and the court found the Appellant, twenty-nine years of age, guilty as charged. Pre-commitment investigation was ordered and sentencing was set for April 2, 1965. The court, by modification and correction, sentenced Appellant to the Indiana State Prison for an indeterminate sentence of five (5) to twenty (20) years.
A Motion for New Trial was filed below and overruled, resulting in this appeal. Overruling of said Motion is the only error assigned in this Court and so far as we have been able to decipher his brief, Appellant urges but one proposition, as follows:
'The decision of the Court is contrary to law.
(a) The Court erred in overruling and denying the 'Motion to Suppress and Reject Evidence' filed herein and in thereafter admitting such evidence against the defendant.
The statutes for which this proposition has been urged is as follows:
'The Court shall grant a new trial to the defendant for the following causes, or any of them:
* * * Ninth. When the * * * finding of the Court is contrary to law or is not sustained by sufficient evidence (citations).'
The basic, underlying question involved in this appeal is whether Appellant was lawfully arrested. If he were lawfully arrested, the evidence found upon him during search was properly obtained and admissible into the evidence at the trial of the issues. Furthermore, the trial court's ruling on the Motion to Suppress and Reject such Evidence necessarily would be correct. What are the circumstances of the arrest, as reflected by the record? One Dennis, 'who had been arrested for narcotics violations on previous occasions', and one Simms informed the arresting officer three days prior to the arrest 'that the Appellant was peddling heroin'; that about 20 to 25 minutes before said arrest, the said officer received a telephone call at his home from Dennis in which he stated to said officer 'that he had just purchased heroin from the Appellant and that Appellant had heroin in his possession in a certain barbershop and was just about ready to leave the barbershop'.
The officer and Dennis had talked on the telephone several times on prior occasions and the officer knew the voice of Dennis. The arresting officer testified that he did not have ample time to go to Police Headquarters to get a warrant. Arrangements were made between the officer and Dennis for the latter to station himself at a nearby corner and to nod his head indicating whether Appellant still remained in the barbershop as the officer passed by. Said officer then went to the barbershop after receiving the proper sign from Dennis and without either an arrest warrant or a search warrant, he arrested Appellant and searched him.
There was no apparent or overt law violation at the time of the arrest and it may be said that the arrest was based on the information and the reliability of Dennis who, on previous occasions, had served the arresting officer.
The traffic in narcotics has been increasing to such an extent that 'informers' often have been used to furnish police officers and others engaged particularly in the enforcement of narcotics laws. Such Consequently, if the information is of a reliable nature and such as to induce action, as here, and particularly when the suspect, as here, has a record of trafficking illegally in narcotics, the procedure employed has had the approval of our courts.
use has been approved by the courts and especially in our own State.
In Johns v. State (1956) 235 Ind. 464, 134 N.E.2d 552, the police officers were furnished with a description of a robber who had held up a liquor store. Two officers in a garage nearby saw a tan colored Chevrolet drive down an alley at high speed. They pursued, but lost the car; they found skid marks where the car had returned a corner. They heard the broadcast of the robbery and description and discovered the car on a parking lot of a hotel. The engine was hot and they informed other officers of what they had found. Further investigation disclosed that the car was owned by Hertz and had been rented to appellant. During the investigation and exchange of information between the officers, they found a man by the name of Johns registered in Room 223 of the Lincoln Hotel and the room clerk gave the officers his description, whereupon, a number of the officers proceeded to Room 223, knocked on the door and when the appellant came to the door, he was asked if his name were Raymond Frederick Johns. Upon receiving an affirmative answer, Johns was arrested, a search made, and they found a loaded 38 snub-nosed revolver, a shoulder holster and the victim's pocketbook and money in a dresser drawer. This Court said:
Appellant contends that the rule in Enlow v. State (1955) 234 Ind. 156, 125 N.E.2d 250, and other cases, apply to his case and the facts established. In the Enlow Case, this Court said:
Thus, it may be determined that the validity of an arrest without a warrant depends upon the facts established in each individual case. Reasonable or probable cause must be established. In the case on appeal, the trial court heard considerable evidence prior to the trial on the issue joined on the Motion to Suppress and Reject Evidence and in our view, sufficient evidence was introduced at the hearing on said Motion to permit the trial court lawfully to overrule the same, thus allowing the introduction into the evidence at the trial the items found in Appellant's possession at the search following arrest. The trial court's ruling on the Motion constituted an adjudication of the validity of Appellant's arrest without warrant and the accompanying search in which it was discovered that he had heroin in his possession. The trial court was entitled to adjudicate this matter and there is ample evidence in the record to sustain the ruling and the judgment entered. Finding that there was no demonstrated error as presented Judgment affirmed.
by Appellant, the judgment of the trial court is sustained.
(DISSENTING OPINION)
I am unable to agree with the majority opinion herein and dissent thereto.
The majority opinion correctly points out that 'The basic, underlying question involved in this appeal is whether Appellant was lawfully arrested.' The majority of the court is of the opinion that the arrest was lawful and that the motion to suppress the evidence was properly overruled; therefore, all of the evidence admitted by the court was proper and competent. It is to this facet of the case that this dissent is directed.
First let us refer to the Verified Motion to Suppress and Reject Evidence, which, omitting formal parts, reads as follows, to-wit:
'Comes now the defendant in the above entitled cause, by counsel, and respectfully moves the Court to suppress, reject and exclude any and all evidence in...
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Payne v. State
...... See Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. We also recognize that informers are frequently used in the enforcement of narcotics laws and that their use has been [168 Ind.App. 404] approved by our courts upon a showing of reliability. See Wagner v. State (1968), 249 Ind. 457, 233 N.E.2d 236. . The reliability test is most often stated in cases discussing probable cause to arrest: . 'While probable cause may be supported and indeed created by information supplied by an informer, it must be demonstrated that the probability ......
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Pawloski v. State
......193, 401 P.2d 665. [269 Ind. 355] It should be noted that the requirement for corroboration is not totally eliminated. The amount of evidence necessary to satisfy the probable cause test is largely determined on a case-by-case basis. Wagner v. State (1968), 249 Ind. 457, 233 N.E.2d 236. The case at bar involves a grey area between these two types of informants. Chambers was not a victim nor had he personally observed the crime. He based his conclusion solely upon the admissions of the appellant. He testified that he ......
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Works v. State
......State, (1924) 195 Ind. 384, 145 N.E. 492, he may arrest for a felony without a warrant, if he has reasonable and probable cause to believe that a felony is being, or has been committed by the subject of the arrest. Wagner v. State, (1968) 249 Ind. 457, 233 N.E.2d 236; Stearsman; Peak; Carter v. State, (1957) 237 Ind. 149, 143 N.E.2d 81; Snow v. State, (1955) 234 Ind. 234, 125 N.E.2d 802. . The defendant argues that the police did not have sufficient cause to believe that there had been a felony ......
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