Weigel v. State

• Decision Date: 29 August 1969
• Docket Number: No. 1068S166,1068S166
• Citation: 252 Ind. 464,250 N.E.2d 368
• Parties: George WEIGEL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 368

250 N.E.2d 368

252 Ind. 464

George WEIGEL, Appellant, v. STATE of Indiana, Appellee.

No. 1068S166.

Supreme Court of Indiana.

Aug. 29, 1969.

[252 Ind. 465] Robert R. Garrett, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

Appellant was charged with the illegal possession of a narcotic drug. Trial by jury resulted in a verdict of guilty and a sentence of not less than two nor more than ten years.

Appellant's sole assignment of error is the trial court's refusal to grant his motion for new trial. In such motion it is alleged that the court erred in overruling the 'Motion to Suppress and Reject' certain evidence obtained pursuant to an 'illegal' arrest and subsequent search of appellant's person.

A brief recital of the evidence most favorable to the state is as follows: A friend of appellant, one George Morris was a prisoner in the Lake County jail. It appears that prior to his incarceration, Morris had been addicted to narcotics and that appellant was largely responsible for introducing Morris to the drugs. This fact had been of great concern to Morris' mother who was pleased to learn that since her son's incarceration, some progress had been made in treating his drug habits.

The day before the appellant's arrest, Morris' motion phoned police officer Cuminus and told him that the appellant planned to visit Morris the next day at the jail and that he intended to slip him some drugs. Officer Cuminus relayed the message to his superior, Sergeant Hilton, who had received a similar call the same day. Word was passed through the proper channels to the jail officials who were instructed to search appellant when and if he arrived at the jail as a visitor.

On November 22, 1967, the day following the phone calls made by Morris' mother, the appellant did arrive at the Lake County jail to visit Morris along with Morris' mother and grandmother. As soon as he had signed the visitor's slip, he was taken by the guards to an office on the second floor and told to remove his clothes. The search resulted in the discovery of a bottle cap, a needle in a plastic case, a syringe and four capsules which were found to contain heroin.

As previously stated, the substance of appellant's motion for new trial is that the verdict was contrary to law in that the trial court erred in overruling his 'Motion to Suppress and Reject' the evidence procured as a result of the alleged illegal arrest and subsequent search. We find appellant's argument without merit.

Appellant contends that the issue in this case is whether the police had probable cause to arrest appellant at the time. If it can be shown that there was, in fact, such probable cause to make the arrest, then it would follow that the subsequent search of appellant was 'reasonable', being incident thereto:

'Constitutional mandates denounce only unreasonable search and seizure and do not preclude such as are incidental to a lawful arrest. * * *' Stearsman, Peak, Carter v. State (1957), 237 Ind. 149, 162, 143 N.E.2d 81, 88.

Before cloaking the search in the instant case with legal sanctity however, probable cause to arrest must be adequately shown and there is no short cut to this determination. As this court stated in Manson v. State (1967), Ind., 229 N.E.2d 801, 803:

'Probable cause justifying an arrest without a warrant exists where facts and circumstances within the arresting officer's knowledge or of which he had reasonably trustworthy information, would lead a reasonably prudent person under the conditions at the time to believe a crime had been committed.' (our emphasis)

It should be emphasized that the facts and circumstances of each individual case are determinative of probable cause for that case. Wagner v. State (1968), Ind., 233 N.E.2d 236. Since two sets of circumstances will never be identical, the court must consider each case on its own merits using the above formula as a guideline.

In the case before us, considering the evidence most favorable to the state, we find the following: George Morris, a known drug addict, was imprisoned in the Lake County jail; telephone calls were received by the police from Morris' mother in which she said that the appellant, the person who had introduced Morris to the use of drugs, was planning to visit Morris the next day and would be attempting to pass narcotics to him; Morris' mother had informed the police on past occasions as to drug abuses (in this case the relationship of mother and son would tend to assure her credibility as an informant); the narcotics were to be passed to Morris in violation of security regulations. Whether the above, in and of itself constitutes probable cause need not here be determined. No action has yet been taken by the police. This information was further corroborated by the fact that the appellant did visit Morris and on the very day the informant had indicated. Given the above, coupled with the officials' duty to prevent the passing of contraband to prisoners, there was probable cause upon which to base the arrest of appellant.

We are well aware and fully appreciative of the necessity of strictly applying the concept of probable cause when determining the legality of an arrest. We also have an appreciation for those rights sought to be protected by our constitutional mandates prohibiting illegal search and seizure. The conflicting interests of society versus those of the individual demand a judicial cognizance, sensitive to the interests of both, yet impartial in its application of such legal principles. In the case at bar, absent the fact that appellant was attempting to smuggle contraband into the prison, admittedly only the bare essentials of probable cause were established. However, the overriding policy considerations of reserving to prison authorities adequate surveillance procedures admittedly enhanced the prospect of finding probable cause.

We have discussed the merits of appellant's argument as it relates to the arrest in spite of the fact that it was not properly reserved to this court. In Moore v. State (1967), Ind., 223 N.E.2d 899, we held that asserted error in overruling a motion to suppress evidence must be urged under the first cause specified in Ind.Ann.Stat. § 9--1903 (1956 Repl.) rather than the ninth as appellant here attempts to do. The statute read in pertinent part as follows:

'The court shall grant a new trial to the defendant for the following causes, or any of them: First. Irregularity in the proceedings of the court, or jury, or for any order of the court or abuse of discretion by which the defendant was prevented from having a fair trial.

Ninth. When the verdict of the jury or the finding of the court is contrary to law, or is not sustained by sufficient evidence. * * *'

From the statute it seems quite clear that a motion for new trial must be based on at least one of the nine causes. Many of the cases involve a situation where the wrongful suppression of evidence is urged as an independent assignment of error. For example see Moore v. State, supra; Snyder v. State (1933), 204 Ind. 666, 185 N.E. 507; Chappelle v. State (1925), 196 Ind. 640, 149 N.E. 163. These cases hold that such error must be assigned under the first cause.

In addition to case authority specifying that the alleged wrongful suppression of evidence be urged as error under the first cause of the statute, it would seem that he is also precluded from urging such error under the ninth cause 'contrary to law' by this court's definition of that term. As was said in Hamiltion v. State (1934), 207 Ind. 97, 104, 190 N.E. 870, 873, quoted with approval as recently as 1968 in ...