Watt v. State, 2-1178A382

Decision Date03 November 1980
Docket NumberNo. 2-1178A382,2-1178A382
Citation412 N.E.2d 90
PartiesDavid WATT and Donna Senteney, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Kenneth C. Kern & Associates, Kenneth C. Kern and Hart E. Meyer, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendants David Watt (Watt) and Donna Senteney (Senteney) appeal their convictions for possession of a controlled substance (marijuana), 1 challenging the trial court's denial of their Motion to Suppress, admission of certain testimony, and sufficiency of the evidence.

We affirm.

FACTS

The facts most favorable to the State are:

In January, 1978, the Indianapolis police sent a "confidential informer" to Watt's home at 3050 Meredith Avenue, to make a "controlled buy" of marijuana. The informer was searched and given money prior to his entrance into Watt's home, and he returned with the controlled substance. Police Officer Gary Walton (Walton) then prepared an affidavit which read:

... (T)hat (Walton) believes and has good cause to believe that Marihuana Cannabis Sativa, the possession of which is unlawful, is in the possession and under the control of Dave Watt living at 3050 Meredith Ave., Indianapolis, Marion County, Indiana. The basis for this affiants belief is that a controlled buy of Marihuana Cannabis Sativa was made by a confidential informant from Dave Watt at the above address with in (sic) the past (72) hours form (sic) January 4, 1978. The informant was searched and given U.S. Currency by myself and observed knocking on the front door and the door opened from the inside and the informant walk inside, of the above address. Approximately five minutes later the informant returned with a quanity (sic) of Marihuana Cannabis Sativa. A preliminary field test by myself found the substance to be Marihuana Cannabis Sativa.

Based on the above information I request this search warrant be issued or (sic) 3050 Meredith Ave., Indianapolis, Marion County, Indiana which is described as a one story double dwelling, white frame with a white roof and orange brick front porch. 3050 is the residence on the west side of double. The residence consists of Liveing (sic) room, dining room, kitchen, bedrooms, bathroom. I request this search to include all rooms, closets, drawers, storage areas, and any place Marihuana Cannabis Sativa can be hidden or concealed also for the person of Dave Watt.

Based upon this affidavit, a search warrant was issued.

The search was conducted on January 4, 1978. Walton and other police knocked at the door of the residence and were admitted by Senteney. The police found Watt in the kitchen and asked him to come to the living room, where the search warrant was read to both defendants. A search of the entire residence revealed marijuana in a dresser drawer and in a box on top of the dresser in the single bedroom; the dresser drawer also contained male underclothing. Clothes of both defendants were in the bedroom. Lysergic acid diethylamide (LSD) was found in the refrigerator, but a count for possession of LSD was later dismissed. The police arrested the two defendants and read them their Miranda rights. After obtaining clothes from the single bedroom, the defendants were taken to the police station, where each gave an address of "3050 Meredith" during the "booking" procedure.

Defendants filed a Motion to Suppress the evidence as illegally seized. After a hearing, the motion was denied. Subsequently they filed a motion to reconsider the motion to suppress, and, after another hearing, the trial judge again denied the motion. The defendants were tried by the court without intervention of a jury and were convicted.

ISSUES

Watt and Senteney present three issues: 2

1. Did the trial court err in refusing to suppress the evidence as illegally seized?

2. Did the court err in admitting into evidence the statements defendants gave regarding their address when they were "booked"?

3. Was the conviction of each defendant supported by sufficient evidence?

DECISION

ISSUE ONE Did the court err in refusing to suppress the evidence as illegally seized?

PARTIES' CONTENTIONS Watt and Senteney claim the evidence should have been suppressed because the search warrant affidavit stated facts based on hearsay, yet the affidavit does not disclose any proof of the credibility of the hearsay informant; thus, they contend, the warrant was invalid and the search was illegal. They further contend that the police informant's conduct in the home was itself a "search" unsupported by a warrant and hence illegal, rendering the subsequent search illegal.

The State counters that the warrant was properly issued, being supported by probable cause, so the police search was legal. Although arguing that the evidence was purchased rather than seized, the State does not respond to the contention that the original contact with the home constituted a warrantless search.

CONCLUSION The initial entry of the informant was apparently a "controlled buy" and therefore not a search; the subsequent search by police was pursuant to a warrant adequately supported by probable cause. Defendants made no showing that the initial entry was illegal. Therefore, the court did not err in refusing to suppress the evidence seized.

The defendants' argument is seductive at first blush, but a closer scrutiny shows it bespeaks a misunderstanding of several basic principles of law.

What must be shown to secure a search warrant is probable cause. U.S.C.A.Const. Amend. IV; Ind. Const. Art. I, § 11; Pirtle v. State (1975), 263 Ind. 16, 323 N.E.2d 634; Ferry v. State (1970), 255 Ind. 27, 262 N.E.2d 523; Johns v. State (1968), 251 Ind. 172, 240 N.E.2d 60. "Probable cause" for a search warrant, as for an arrest warrant, does not mean a prima facie case against any defendant. Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. Accord, United States v. Ventresca (1965), 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684; Ferry, supra 262 N.E.2d at 529 (Givan J., dissenting). Moreover, the probable cause which must be shown for a search warrant is not the same as the probable cause which must be shown for an arrest warrant. See generally Berner, Search and Seizure : Status and Methodology, 8 Val.U.L.Rev. 471, 493-94 (1974). What must be "probable" for a search warrant is that (1) the item for which the search is conducted is in a particular place, and (2) the item is crime-related. See Zurcher v. Stanford Daily (1978), 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525. See also Snedegar v. State (1926), 198 Ind. 182, 150 N.E. 367, 368. See generally Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349 (1974); Comment, 28 U.Chi.L.Rev. 664, 687 (1961). Obviously, when the item is contraband it is definitionally crime-related. It is "property, the possession of which is unlawful" as contemplated by Ind.Code § 35-1-6-1.

How probable cause is to be shown is dictated by statute. Ind.Code § 35-1-6-2 (as amended, 1977) states:

(a) Except as provided in subsection (c) of this section, no warrant for search or arrest shall be issued until there is filed with the judge an affidavit, particularly describing the house or place to be searched and the things to be searched for, or particularly describing the person to be arrested, and alleging substantially the offense in relation thereto, and that the affiant believes and has good cause to believe that such things as are to be searched for are there concealed, or that the person to be arrested committed said offense, and setting forth the facts then in knowledge of the affiant or information based on credible hearsay, constituting the probable cause. When based on hearsay, the affidavit shall contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished.

(c) In lieu of an affidavit or in addition thereto, a search or arrest warrant may be issued upon sworn testimony of the same facts required for affidavits in a nonadversary hearing before a judge; the proceeding shall be recorded or transcribed by a court reporter or recording device.

Id. Thus, as the statute makes clear, there are alternative ways of showing probable cause. Cf. State ex rel. French v. Hendricks Superior Court (1969), 252 Ind. 213, 247 N.E.2d 519, 526 (arrest warrant). If the facts are known to the affiant, he need not establish the credibility of any person. However, facts obtained through illegal procedures violating constitutional rights may not form the basis of probable cause. Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Ashley v. State (1968), 251 Ind. 359, 241 N.E.2d 264, 268; Manson v. State (1967), 249 Ind. 53, 229 N.E.2d 801, cert. den. 390 U.S. 995, 88 S.Ct. 1198, 20 L.Ed.2d 95. See also Rohlfing v. State (1949), 227 Ind. 619, 88 N.E.2d 148, 149.

In determining whether probable cause exists for the issuance of a search warrant, the court asked to grant the warrant must make its decision based upon the facts stated and the rational inferences to be drawn therefrom. Berner, supra at 495; LaFave, Search and Seizure : The Course of True Law ... Has Not ... Run Smooth, 1966 U.Ill.L.F. 255, 259, n. 40. It is to make a "common-sense" reading of the entire affidavit. Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; United States v. Ventresca (1965), 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684.

A common-sense approach means that the magistrate is not required to speculate as to every conceivable possibility that the facts stated were somehow obtained through illegal measures. Were the rule otherwise, no search warrant would ever issue if the judge had any imagination whatsoever. Similarly, the State by its...

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