Walker v. State, No. 684S237

• Docket Nº: No. 684S237
• Citation: 503 N.E.2d 883
• Case Date: February 09, 1987
• Court: Supreme Court of Indiana

Page 883

503 N.E.2d 883 George WALKER, Richard Kapachinski, and Charles E.
Kapachinski, Appellants,
v.
STATE of Indiana, Appellee. No. 684S237. Supreme Court of Indiana. Feb. 9, 1987.

Page 884

William F. Carroll, Marc H. Donaldson, Crown Point, for George Walker.

James R. Bielefeld, Crown Point, for Richard Kapachinski.

James A. Greco, Greco, Gouveia, Miller, Pera & Bishop, Merrillville, for Charles E. Kapachinski.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

A trial by jury resulted in a conviction of Burglary, a Class B felony, for each of the appellants. Walker and Richard Kapachinski each received a sentence of eighteen (18) years and Charles Kapachinski received a sentence of twelve (12) years.

The facts are: At approximately 6:00 p.m., on June 18, 1982, officers of the Chicago

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Police Department began their eighth day of surveillance of Richard Kapachinski, Charles Kapachinski and Frank Esposito. This surveillance was the result of a tip to the Chicago Police Department that Richard Kapachinski and Esposito were committing burglaries in Chicago and Cook County, Illinois. During the course of the surveillance, the officers had repeatedly followed the suspects back and forth across the Indiana-Illinois border.

During surveillance on the day in question, the suspects drove from southern Chicago into Schererville, Indiana, where they parked and waited approximately ten minutes in a location about one block from the scene of the eventual break-in. They then drove to Nick's Bar in Hammond, Indiana, where they sat in their car for a few minutes. Charles Kapachinski and Esposito got into Kapachinski's car. Richard Kapachinski went to Lansing, where he picked up George Walker.

The four men subsequently met at Richard Kapachinski's apartment, from whence they drove to the scene of the break-in. When they arrived at the scene they waited in the car for a few moments, then Richard Kapachinski and Walker went into the front door of the apartment building. Approximately one minute later, a light was turned on in the upstairs apartment, which was one of four condominiums in the building. At that time the car was moved immediately behind the surveillance van occupied by Officer Farrell of the Chicago Police Department.

From his vantage point, Officer Farrell observed Charles Kapachinski and Esposito in the front seat of the car. After about twelve to fifteen minutes, Officer Farrell observed Charles Kapachinski speak into a hand-held radio and return the car to its original location in front of the apartment. Richard Kapachinski and Walker then exited the building carrying objects which they had not carried into the building. The four men then returned to Richard Kapachinski's apartment.

Chicago Police Officer Robert Brown went into the building where he discovered that the second floor security door between the vestibule and the interior of the building had been propped open with a rolled-up paper. When he got upstairs he discovered that the door had been forced open to the apartment from which the light had come. The interior of the apartment had been ransacked. Upon receiving this information, Officer Philip Michaels of the Chicago Police Department went to the Schererville Police Station.

At the station, Michaels met Officer Mitchell. Together they returned to Richard Kapachinski's apartment. While they were en route to the apartment, Michaels was informed by radio that two of the suspects were preparing to leave. He then, with the concurrence of Mitchell, advised the other Chicago police officers to arrest the two suspects who were attempting to leave. Those so arrested turned out to be Walker and Charles Kapachinski. Richard Kapachinski and Esposito were subsequently arrested inside the apartment building.

Jack Shaffner, the estranged husband of Edith Shaffner, was subsequently summoned to the burglarized condominium which was jointly owned by him and his estranged wife. Shaffner verified that property jointly owned by him and his wife was missing from the apartment. He was able to positively identify certain of the seized items as objects which were missing from the residence.

Each of the appellants in this case has filed a separate brief and reply brief; however, due to the similarity of each of the briefs, the State was able to answer each in a single brief. We will attempt to cover each of the points raised by each of the appellants in a similar fashion.

Appellants claim the trial court erred in refusing to suppress evidence seized by the Chicago police officers, alleging that the officers had no authority in Indiana; therefore, their search was illegal. There is a statute, Ind.Code Sec. 35-33-3-1, which allows police officers from another state, when they are in fresh pursuit of a

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felon, to pursue the felon into Indiana and effect an arrest in this state; however, as pointed out by appellants, that statute is not applicable in this case. All activity concerning the instant crime was perpetrated in Indiana. Under the circumstances, the Chicago police officers had no Indiana police authority. They were strictly operating as citizens in making the arrests in Indiana.

Ind.Code Sec. 35-33-1-4 provides in part:

"(a) Any person may arrest any other person if:

(2) a felony has been committed and he has probable cause to believe that the other person has committed that felony."

The Chicago police officers, although outside their jurisdiction, certainly had authority to effect their arrest under this statute. The statute further provides:

"(b) A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer."

This the Chicago police officers did. In fact they had done so before effecting their arrest and effected the arrest only because as the Indiana police officer was on his way to the scene, two of the subjects took action indicating that they were about to leave the scene. It was only then that the Chicago police officers effected...