Williams v. State, 30712

• Decision Date: 29 December 1966
• Docket Number: No. 30712,30712
• Citation: 222 N.E.2d 397,248 Ind. 66
• Parties: Joseph Louis WILLIAMS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 397

222 N.E.2d 397

248 Ind. 66

Joseph Louis WILLIAMS, Appellant, v. STATE of Indiana, Appellee.

No. 30712.

Supreme Court of Indiana.

Dec. 29, 1966.

John G. Bunner, Evansville, for appellant.

John J. Dillon, Atty. Gen., James Manahan, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

There being only four judges as members of this Supreme Court at the present time since the recent resignation of Achor, J., Rakestraw, J. and Arterburn, C.J., are of the opinion that the decision of the trial court should be affirmed, while Myers and Jackson, JJ., are of the opinion that the decision of the trial court should be reversed and the appellant granted a new trial.

The four judges participating being equally divided at the last term of court (Achor, J., not then participating), and being still equally divided at this term, the judgment of the trial court is affirmed without costs. Acts 1881 (Spec.Sess.) ch. 38, § 654, p. 240, being Burns' Ind.Stat. Anno. § 2--3232 (1946 Repl.).

The separate opinions covering the material points in issue arising from this appeal are as follows:

MYERS, Judge--Separate Opinion.

This is an appeal from a judgment of the Vanderburgh Circuit Court wherein appellant was convicted of the crime of robbery. An amended affidavit charging appellant with robbery was filed March 5, 1964. A motion to suppress the evidence was filed on the same day. It was overruled on June 25, 1964, after evidence was heard thereon. In the meantime, appellant waived arraignment, entered a plea of not guilty, and requested trial by jury which was granted. On September 28, 1964, trial was commenced before a jury, which was discharged after both appellant and the State waived trial by jury. Trial was concluded on October 1, 1964, before the court which found appellant guilty as charged on October 8, 1964. He was sentenced to a term of ten to twenty-five years at the Indiana Reformatory and was disfranchised for a period of ten years. Motion for a new trial was timely filed and overruled on November 12, 1964. This appeal followed.

The assignment of error is based upon the overruling of the motion for new trial. The grounds of the motion are that the finding of the court is contrary to law and not sustained by sufficient evidence; that the court erred in overruling appellant's motion to suppress the evidence; that there were errors of law committed during the trial in regard to the admission of certain testimony and the introduction of certain evidence.

The principal contention raised by appellant in this appeal is that certain evidence was erroneously admitted by the trial court which allegedly was acquired in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and Art. 1, § 11, Art. 1, § 12, Art. 1, § 13, and Art. 1, § 14, of the Indiana Constitution. The pertinent section involved herein is the Fourth Amendment to the United States Constitution which reads as follows:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The facts most favorable to appellee are to the effect that appellant was driving alone in a 1957 Chevrolet automobile about 3:30 or 4:00 p.m. on February 28, 1964, upon U.S. Highway 70, approaching Memphis, Tennessee. There were Illinois license plates on his car. He claimed that he had driven from Chicago and was headed for the State of Louisiana.

On that day, two State Troopers of the Tennessee Highway Patrol were on duty patrolling the highways. In carrying out their duties, they stopped numerous drivers to inspect their drivers' licenses. When assigned to road patrol they did this regularly every day. At 4:00 p.m. they had stopped fifteen or twenty automobiles without regard to their license plates, where they came from, or whether the drivers were white or colored. Such inspection was indiscriminate and a mere matter of routine. They saw appellant driving west on U.S. 70, and, for no other reason than to check his driver's license, followed him with their red light on until he stopped outside the city limits. They drove their police car directly in front of his at the curb. Both troopers, being in uniform, got out of their car at the same time appellant opened the door of his car and stepped out on the driver's side. They stood there by his left front fender while they asked him to produce his driver's license. He searched his pockets and could not find it. Then he asked if he could go back to his car and look for it, saying it could be in the car or his coat which was lying inside. One officer followed him to the driver's side when he got in, while the other officer walked around to the other side for security reasons. Appellant sat under the steering wheel on the driver's side and started to look for his license in the glove compartment. When he opened it there were some papers in it and two Ten Dollar bills. He could not find his license. At that time the officers told him they were going to have to take him uptown, charge him and arrest him for failure to have a driver's license, and that one of the officers would take his car back to their station. The reason for this was that they were responsible for his car if they arrested him. They wanted it in a safe and secure place and not left sitting on the side of the road. There were no facilities at the county jail for storing an automobile.

In the meantime, while appellant was seeking his license, the other officer looked under the right seat of appellant's car and saw a shaving kit which had money sticking out of it. He could see the ends which were 'kind of ruffled up,' with a rubber band around them. It appeared to be a considerable sum of currency, consisting of bills of five to twenty dollars' denomination. The officer took it out of the car and brought it around to show it to his fellow trooper. They asked appellant where he got the money. He answered that he won it in a gambling casino at 'Las Vegas, California.' With that, they placed handcuffs on appellant and put him in the patrol car. One officer drove him to State Police Headquarters, while the other officer followed in appellant's car. The shaving kit and money had been placed back in appellant's car on the seat behind the driver. Upon arriving at State Police Barracks, they all got out and took the shaving kit into a small office where they proceeded to count the money therein. Appellant was present at all times. It turned out there was a total sum of $4,865.51 stuffed in the kit.

In counting the money, they found some currency with bank wrappers around it designated as having come from the Old National Bank in Evansville, Indiana. At that, the FBI was called in and agents thereof questioned appellant. At length, appellant stated to members of the Memphis Police Department that he had hit and robbed a man who was making a night deposit in the Old National Bank at Evansville. He signed a statement to this effect.

Later, he was driven to the Memphis County Jail. It was learned then that there had been no such robbery in Evansville, but that appellant was wanted there in connection with a holdup at the Penny Can Market, Inc., where some shots were fired in the process. He eventually signed a second confession in which he admitted to having held-up a man in the office of the Supermarket at gunpoint on February 19, 1964, taken money from him and run after shooting through a glass door. An affidavit charging appellant with armed robbery in Indiana was signed by one of the Tennessee State Troopers, and a fugitive warrant was issued thereon. He was booked for armed robbery and placed in jail. After a hearing in court, he waived extradition and surrendered himself to Evansville police officers who took him back to Evansville. Subsequently, he was tried and convicted there of robbery.

The motion to suppress filed prior to trial pertained to the money found in the shaving kit taken from appellant's automobile, the bank wrappers, other papers and belongings which were alleged to be the fruit of an illegal search and seizure of appellant and his property which, it was stated, appellee intended to use as evidence against appellant in the trial of the cause. This motion was overruled.

At the trial, appellant continued to object to the introduction of these items, as well as the confessions of appellant, for the same reason among others. These objections were overruled and the evidence was admitted.

In argument, appellant contends error was committed in overruling these motions on the ground that he was deprived of his fundamental constitutional rights. He says that, in the first place, his arrest was illegal since it was made without a warrant; that the officers had no probable cause to believe he had committed a felony; that they had seen no misdemeanor committed in their presence so as to be empowered to make an arrest without a warrant.

As a general rule, a police officer has no authority to make an arrest without a warrant unless he has seen a crime committed in his presence, such as a felony or a misdemeanor, or has probable cause to believe that a felony has been committed. This is the law not only in Indiana, but in the State of Tennessee and under Federal decisions. Brown v. State (1951), 229 Ind. 470, 99 N.E.2d 103; Robertson v. State (1947), 184 Tenn. 277, 198 S.W.2d 633; Henry v. United States (1959), 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134. See 5 Am.Jur.2d, Arrest, § 22 et seq., pp. 711 et seq.

If the arrest is unlawful from its inception, any search or seizure pursuant thereto is unreasonable and in violation of constitutional rights. Brown v. State, supra.

In this case, it was admitted by the officers that they...