Elliott v. State

317 N.E.2d 173, 262 Ind. 413, 1974 Ind. LEXIS 322

• Court: Indiana Supreme Court
• Decided: October 9, 1974
• Docket: 974S181
• Status: Published

Opinions

ON PETITION TO TRANSFER

Prentice, J.

This case is before us upon the State’s petition to transfer from the Court of Appeals, District 2. The decision and opinion of that Court was filed on April 16, 1974 and appears in 309 N.E.2d 454. Rehearing was denied May 22,1974.

The petition to transfer is now granted. The decision of the Court of Appeals, District 2 is hereby vacated, and the judgment of the trial.court is affirmed.

The sole issue in this case is the ruling upon a motion to suppress evidence. The trial court denied the motion.

The evidence offered at the hearing was scant. The officer who made the arrest testified merely that he had received information that a lieutenant of a notorious drug dealer was to make a narcotic delivery at 3504 Evergreen Street. He and an associate immediately went to that address where they saw the defendant exiting. The defendant was known to have a police record of multiple arrests on drug related charges and at least one conviction. He was in the company of two companions, both of whom were known drug users. The building at 3504 Evergreen Street was an apartment building, but the number of housing units therein was not disclosed. There was no known association between the defendant or his companions and the narcotics dealer for whom the delivery reportedly was to be made.

The police officers stopped the three for interrogation and identified themselves. The arresting officer saw a bulge in the defendant’s pocket, which caused him to thus fear for his safety, and he “patted down” the defendant and found a revolver in his back pocket.

Assuming that the officer’s source of information was reliable, the circumstances related warranted a cursory investigation. Since the officer had no warrant, the burden at the hearing was upon the State to show that the police action resulting in the seizure fell within one of the exceptions to the warrant requirements of the Fourth Amendment. State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874 and cases there cited. Although minimally so, this burden was fulfilled when the officer testified as to the circumstances, i.e. a recent drug delivery, or one about to be made, and the defendant’s known propensities for narcotics. It is astonishing that the State did not volunteer testimony from which the trial judge could make an independent judgment as to the reliability of the officer’s information concerning the drug delivery, in order that the reasonableness of the action might be better assessed. It is equally astonishing that the defendant did not cross examine the officer concerning the source of the information and its reliability, because at that stage of the proceedings, the reasonableness of the officer’s actions had been established prima faciely. The trial judge might have been justified had he disbelieved the officer’s testimony concerning the reported drug delivery, inasmuch as it was not supported in any manner. However, he was not required to disbelieve it or to presume that the information the officer acted upon was so unreliable as to render reliance thereon unreasonable. Further, we must keep in mind that we are here determining the reasonableness of action predicated upon probabilities and not with a determination of guilt.

It is immaterial whether the bulge in the defendant’s pocket was seen before or not until after the detention. The detention was lawful regardless. If the bulge was in fact observed prior to the detention, the cause for detention was even stronger, and we see no reason to conclude that, because the officer was facing the defendant, it would have been impossible for him to have observed a bulge in his clothing caused by an object reposed in his back pocket.

We view the detention and limited search procedure as a two-step process. The cause for search need not necessarily be apparent to justify a detention. It may arise during the detention.

Viewing the evidence most favorable to the State and resolving the ambiguities in favor of the trial court’s finding as required by our case law, Capps v. State (1967), 248 Ind. 472, 229 N.E.2d 794; Bowles v. State (1971), 256 Ind. 27, 267 N.E.2d 56; State v. Smithers, supra, we hold that the detention and search were lawful as gauged by the tests of Terry v. Ohio (1968), 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 and Luckett v. State (1972), 259 Ind. 174, 284 N.E.2d 738.

Defendant, upon the strength of McCray v. Illinois (1967), 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62, urges that the State’s failure at the hearing to demonstrate that the probability of accuracy of the officer’s information regarding the drug delivery was high required the trial court to sustain the motion to suppress. The issue in that case, however, was the extent of the State’s burden to show probable cause while expressly declining to reveal the source of its information. He also relies upon Bowles v. State, supra, but in that case the evidence affirmatively disclosed that the information acted upon had no reliability. In the case at bar, the defendant did not challenge the reliability of the officer’s information. The decision of the trial court is affirmed.

Arterburn, C.J., Givan and Hunter, JJ., concur; DeBruler, J., dissents with opinion.