Whirley v. State, 2-879A241

Citation408 N.E.2d 629
Decision Date19 August 1980
Docket NumberNo. 2-879A241,2-879A241
PartiesWanda WHIRLEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtCourt of Appeals of Indiana

Raymond J. Guntz, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Asst. Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Presiding Judge.

Wanda Whirley (Whirley) was convicted by a jury of two violations of the Indiana Controlled Substance Act: Ind. Code 35-48-4-11 (as amended, 1977) and Ind. Code 35-48-4-7 (as amended, 1977). 1 Whirley alleges the trial court erred in denying her motion to suppress evidence gained through the execution of a search warrant, and that the verdict was contrary to law and not sustained by sufficient evidence. We affirm.

Mindful of the appellate standard of review, the facts most favorable to the judgment revealed that a confidential police informant purchased marijuana from Whirley's residence under a "controlled buy" situation. Officer William Meaker was the policeman in charge of the investigation, and the one who set up the buy. It was upon Meaker's affidavit that the search warrant was issued to search Whirley's home. Meaker testified as to his procedures to insure that the informant was "clean" when the buy was made, but admitted that he lost sight of the informant for approximately twenty (20) seconds when the informant walked from the front of the house to the back door, which forced Meaker to change the position of his car to keep the informant and the house under surveillance.

Following the purchase, Meaker swore out an affidavit in which a search warrant was requested. The basis upon which the search warrant was requested, was the controlled buy, surveillance and information gathered by Officer Meaker. In the affidavit, Meaker declared that the confidential informant was under his constant observation. The search warrant was issued, and upon execution, marijuana and other controlled substances were found in the residence and in the purse of Whirley.

Whirley filed a motion to suppress the evidence gained by the search, on the basis that there was not sufficient probable cause to issue the warrant. This was based on the fact that since the informer was out of Meaker's sight for 20 seconds, the controlled buy was not in fact controlled. Additionally, Whirley argued that since the credibility of the informer was not established in the affidavit, the probable cause could only be determined by the controlled buy of Officer Meaker, and since the buy was not controlled, there was no probable cause. The pre-trial motion to suppress was denied and the evidence was admitted at the trial.

Whirley first argues on appeal that the motion to suppress should have been granted. We do not agree. The State's brief argues that any error here is waived, since there was not a timely objection to the introduction of the evidence. See Collins v. State, (1977) 266 Ind. 430, 364 N.E.2d 750. During the State's case-in-chief, Officer Meaker testified as to the State's exhibits, which were the subject of Whirley's motion to suppress. No objection was made. It was only when the exhibits were offered into evidence, two witnesses later, that the objection was made as to their introduction. Although we agree with the State that the objection would be more proper if made when the testimony as to the items was first offered, we will proceed to the merits of Whirley's contention.

Whirley relies heavily on Mills v. State, (1978) Ind.App., 379 N.E.2d 1023, for the contention that except for what happens within the residence, the entire transaction must take place under the direct observation of the police in order to have a controlled buy. Mills, in turn, relies on Hignut v. State, (1973) 17 Md.App. 399, 303 A.2d 173, for the proposition that when the controls are adequate, the affiant's personal observation of a controlled buy may suffice as grounds for probable cause absent having established the credibility of the informant. 379 N.E.2d at 1026; 303 A.2d at 180.

We agree with the declarations of those cases, and applying the standards here, find that the control over the buy was adequate. Hignut, supra, reviewed the standards set forth in Aguilar v. Texas, (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; United States v. Ventresca, (1965) 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 and Spinelli v. United States, (1969) 393 U.S. 410, 89 S.Ct. 584, ...

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  • U.S. Steel Corp. v. Northern Indiana Public Service Co., Inc.
    • United States
    • Indiana Appellate Court
    • December 23, 1985
    ... ... NORTHERN INDIANA PUBLIC SERVICE COMPANY, INC.; Public ... Service Commission of the State of Indiana; and ... the State of Indiana, Appellees (Defendants Below), ... Office of the Utility Consumer Counselor, Appellee ... ...
  • Haynes v. State
    • United States
    • Indiana Supreme Court
    • February 11, 1982
    ...the informant was not actually seen entering the house was a factor for the jury to consider in weighing the evidence. Whirley v. State, (1980) Ind.App., 408 N.E.2d 629. This is not to say that in all instances such behavior will uphold a controlled buy. We are merely saying that under the ......
  • Osborne v. State
    • United States
    • Indiana Appellate Court
    • March 25, 2004
    ...practice. See McCollum v. State, 582 N.E.2d 804 (Ind.1991); Marlowe v. State, 786 N.E.2d 751 (Ind.Ct.App.2003); Whirley v. State, 408 N.E.2d 629 (Ind.Ct.App.1980); Locklayer v. State, 317 N.E.2d 868, 162 Ind.App. 64 (1974). The key to the controlled buy is that the police are in control of ......
  • Watson v. State
    • United States
    • Indiana Supreme Court
    • December 30, 2005
    ...720 N.E.2d 384, 389-90 (Ind.Ct.App.1999) (same); Flaherty v. State, 443 N.E.2d 340, 341 (Ind.Ct.App.1982) (same); Whirley v. State, 408 N.E.2d 629, 631 (Ind.Ct.App.1980) (discussing underpinnings of Presumably, the pre-buy search establishes the person making the purchase for the police doe......
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