Watts v. State

• Decision Date: 29 April 1982
• Docket Number: No. 1-1081A299,1-1081A299
• Citation: 434 N.E.2d 891
• Parties: William WATTS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 891

434 N.E.2d 891

William WATTS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1-1081A299.

Court of Appeals of Indiana, First District.

April 29, 1982.

Frank E. Spencer, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

William Watts (Watts) appeals his convictions for possession of marijuana, a class D felony, and possession of a controlled substance, cocaine, a class D felony, at his trial to a six member jury.

We affirm.

Watts raises five issues for our review arguing: 1) that the search warrant, which yielded the evidence supporting the State's case, was invalid because it inadequately described the premises to be searched; 2) that his motion for a mistrial was improperly denied because the prosecutor questioned a police officer about his conversation with an absent informant, which constituted an "evidentiary harpoon"; 3) that a six member jury was improper because the authorizing statute, Ind.Code 33-10.5-7-6, is a "special" law which violates the equal protection clause of Indiana's constitution and because it contravenes Ind.Rules of Procedure, Trial Rule 48, Criminal Rule 21; 4) that the trial court gave an erroneous entrapment instruction containing language refering to "otherwise innocent persons"; and 5) that the trial court erred by imposing consecutive rather than concurrent sentences.

Based upon an informant's statement that Watts had marijuana packaged and ready for sale at his home, Donald Croft, a detective with the Jeffersonville Police Department, obtained a search warrant for Watts's home. The search warrant described the property to be searched as:

a certain Dwelling, to-wit: 513 E. Chestnut St., Jeffersonville, Clark County, Indiana. Said dwelling being the residence of a Bill S. Watts. Said residence being described as follows; a wood frame, one-story house, gray in color, with white trim and green roof. The front door of the residence faces south. The house is located on the north side of Chestnut St.

Croft and several other officers executed the search warrant on March 28, 1980. Croft, accompanied by another officer, entered the front porch of 513 E. Chestnut St. and found two doors. The officers knocked on the door to the right and Watts answered. The officers identified themselves and after Watts initially resisted, they entered the room. They found marijuana in plain view and began the search. Although Watts did not physically resist, he was uncooperative. The officers requested the combination for a safe in Watts's living room, which they ultimately found on Watts's person. The safe contained a variety of drugs including the marijuana and cocaine supporting the convictions before us.

The officers questioned Watts about what was contained in the other side of the house, behind the door to the left. Several times Watts was unresponsive, but he finally stated a dog would attack the officers if they went into the other part of the house. The officers forced open the door and upon entering discovered a separate apartment. The resident was not at home. A gun was taken by the officers and they left the apartment. Subsequently, Watts was tried and convicted of the described offenses.

Turning to Watts's allegation that the search warrant did not properly describe the area to be searched, we find no error. Watts argues the search warrant was defective because it did not specify which apartment at 513 E. Chestnut St., was to be searched and therefore, that the warrant violated the Fourth Amendment of the U.S. Constitution and Art. 1, Sec. 11 of Indiana's Constitution, both of which require a search warrant to be based upon probable cause and to particularly describe the place to be searched. The Supreme Court in the often cited case, Steele v. United States, (1925) 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757, set the standard for particularity stating:

It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.

267 U.S. at 503, 45 S.Ct. at 416.

However, in situations involving buildings, particularly dwellings with multiple occupants, search warrants have generally been held to be invalid when they failed to specify which sub-unit was to be searched. Generally, Annot. 11 A.L.R.3d 1330, 1333 (1967), e.g. Tynan v. United States, (9th Cir. 1924), 297 F. 177, cert. denied, 266 U.S. 604, 45 S.Ct. 91, 69 L.Ed. 463. The leading Indiana case on this issue is Thompson v. State, (1926) 198 Ind. 496, 154 N.E. 278. In Thompson, the warrant described the residence to be searched as "29 Mary street in the city of Evansville". The building was an old residence which contained ten rooms, two of which the defendant occuppied. Our supreme court held the search was invalid stating:

Where a building or the premises are described in the search warrant or affidavit by a single street number, and more than one family resides at such street number in the building, in a separate apartment; or where more than one separate business is carried on within the premises designated by such street and number by a separate proprietor-plainly upon principle a warrant directed to search the premises designated by such single number would be illegal and void, unless there was something in the affidavit to connect each one of the occupants of the premises with the alleged unlawful act.

154 N.E. at 279.

In the case at bar, the State concedes there were two apartments at the address in the search warrant, but argues that the warrant was proper because Officer Croft had no reason to know the house contained multiple residences.

This precise issue, whether a search warrant which inaccurately described a multiple unit dwelling by failing to specify the appropriate sub-unit is valid when the police officer obtaining the warrant has no reason to know multiple units are involved, has not been addressed by Indiana's courts. The issue was not raised in Thompson v. State, supra. The federal courts and several other state courts have recognized such an exception to the general rule that a search warrant which fails to specify a sub-unit is invalid. ² Generally, 11 A.L.R.3d at 1344 § 8.

In particular, in the analogous cases Owens v. Scafati, 273 F.Supp. 428 (D.Mass.1967) cert. denied, 391 U.S. 969, 88 S.Ct. 2043, 20 L.Ed.2d 883; United States v. Santore, 290 F.2d 51 (2d Cir. 1960), cert. denied, 365 U.S. 834, 81 S.Ct. 745, 5 L.Ed.2d 743; Houser v. Geary, 465 F.2d 193 (9th Cir. 1972) cert. denied 409 U.S. 1113, 93 S.Ct. 927, 34 L.Ed.2d 696, search warrants were upheld where the structures to be searched appeared to be single dwellings and were described in the search warrants by street addresses. For example, in Santore, the court stated:

The house at 164 Hill Street is to all outward appearances a one-family house ....

The agents were not warned of a possible dual occupancy of the house until after they had shown the copy of the warrant to Orlando. At that moment it was too late for them, consistent with the success of their mission, to have retreated and obtained a new warrant.

290 F.2d at 67.

We think this is the proper approach and will apply it to the case at bar.

Detective Croft explained that the house appeared to be a single residence because it resembled other houses in the area which had two front doors, one leading into the living room and one into a bedroom. The informant had not indicated the existence of two apartments. The police checked Watts's telephone listing and vehicle registration, both listed his address as 513 E. Chestnut St. in Jeffersonville. There was a single mailbox at the house. The doors to the house were not numbered.

Thus, prior to their entry, the police had no reason to know separate residences were involved. Indeed, after their entry, they still were not on notice. Although they found a letter in the mail box addressed to Collen Sheenan, Watts had informed them a woman lived with him without specifying her name. The letter was not addressed to an apartment number. In response to questions about the other side of his home, Watts was at first unresponsive and then stated a large dog would attack the officers if they entered. Watts never indicated the existence of a separate apartment.

Watts has submitted a photograph, which depicts the front of his home and shows the two doors numbered one and two, to support his argument that the police had notice of two residences. Detective Croft testified that the doors were unmarked when the warrant was executed. It is axiomatic that we may not judge a witness's credibility.

Therefore, because the police were not on notice that two residences were located at the address, either actually or constructively, the trial court did not err by sustaining the search warrant and admitting the resulting evidence.

We also disagree with Watts's allegation that he was entitled to a mistrial because the prosecutor "harpooned" the defense by asking an officer about his conversation with the confidential informant. The question...