State Ex Rel. French v. Hendricks Superior Court

247 N.E.2d 519, 252 Ind. 213, 1969 Ind. LEXIS 344

• Court: Indiana Supreme Court
• Decided: May 2, 1969
• Docket: 369S44
• Status: Published

Opinions

Jackson, J.

This matter comes to us by way of a Verified Petition For a Temporary Writ of Prohibition wherein relator prays that respondents be prohibited and restrained from proceeding any further in a certain cause entitled The State of Indiana v. Richard Allen French. Such cause is numbered SCR 69-3 on the dockets of respondent court and is an affidavit charging relator with the crime of auto theft.

It appears that on January 12, 1969, relator was arrested without warrant for stealing an automobile. The arrest was made by Indiana State Trooper and Marion County Deputy Sheriffs who responded to a radio dispatch that a subject had stolen an automobile and had abandoned it in the vicinity of High School Road and U. S. Highway 40.

The verified petition alleges that said affidavit was filed in respondent court on January 13, 1969, that relator was on the 13th day of January, 1969, arrested on a warrant issued out of respondent court as a result of the filing of the affidavit above mentioned. Relator alleges that no judicial inquiry was made, hearing had to determine the existence of probable cause prior to the issuance of the warrant for relator’s arrest on January 13, 1969. Relator further alleges that on the 13th day of January, 1969, respondent court, on learning relator was seventeen years of age, waived jurisdiction of relator to the Juvenile Court of Hendricks County, Indiana; that thereafter on the 21st day of January, 1969, the Hendricks Circuit Court sitting as the Juvenile Court of Hendricks County, Indiana, held a waiver hearing relative to the relator and the crime with which he was charged by the affidavit above referred to, at the conclusion of which the Juvenile Court of Hendricks County, Indiana, transferred jurisdiction of relator and the charge on which he was arrested back to the Superior Court of Hendricks County, Indiana, where relator was to be required to stand trial as an adult. On the 22nd day of January, 1969, respondent court re-assumed jurisdiction in cause No. SCR 69-3 in said court. Being advised relator did not have counsel, the court appointed Thomas J. O’Brien as pauper attorney for relator and set bond for relator at the sum of $3,000.00.

Thereafter on February 10, 1969, relator filed a Motion to Quash the arrest warrant, supported by memorandum, on the grounds that there was no determination made of existence of probable cause before the warrant was issued. Further, by reason of the failure to determine probable cause prior to the issuance of the arrest warrant, it was contended that the issuance thereof was void, outside the scope of law and that the Sheriff of Hendricks County, Indiana, had no legal authority to arrest relator on the authority of such warrant.

On February 13, 1969, more than thirty days after the arrest warrant heretofore mentioned had been issued and more than thirty days after relator had been arrested by virtue thereof, the State of Indiana, by and through the Prosecuting Attorney for the 55th Judicial Circuit, caused to be filed in the office of the Clerk of the Superior Court of Hendricks County, Indiana, an affidavit entitled “Probable Cause Affidavit.”

February 19, 1969, relator filed a Motion to Quash the affidavit entitled “Probable Cause Affidavit,” supported by memorandum on the grounds that the affidavit was in itself a tacit admission that the arrest warrant issued January 13, 1969, did not comply with the constitutional standards for the issuance of arrest warrants and was, therefore, in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Constitution of the. State of Indiana.

February 20, 1969, respondent Judge heard oral argument on relator’s Motion to Quash arrest warrant and on relator’s Motion to Quash “Probable Cause Affidavit,” and overruled both motions.

Relator urges inter alia that the Prosecuting Attorney for said Judicial District stated “That there is no legal way to refile this case against Richard Allen French”; that in view of his incarceration in the Hendricks County Jail the statement of the Prosecuting Attorney, the fact that he is a pauper unable to raise even $10.00 for bail, denial of his constitutional rights, the illegal assumption of jurisdiction of this cause by respondent court will do relator irreparable harm and prays that there issue from this Court a Temporary Writ of Prohibition against respondents and each of them prohibiting and restraining each and both of them from proceeding any further in said cause and/or assuming, taking or exercising any authority or jurisdiction in or over said cause, etc.

The Court heard oral argument on the issues presented herein on the 10th day of March, 1969, and took the matter under advisement in order to give the full Court opportunity to fully and carefully consider all questions presented hereby.

In order to clearly present the issues we deem it advisable to incorporate herein, in pertinent part, the exact wording of some of the pleadings, beginning with the affidavit filed herein.

The affidavit was attached to and made a part of relator’s petition, marked Exhibit A and reads as follows, to-wit:

“THE STATE OF INDIANA vs. Richard Allen French (In Jail)

Affidavit for THEFT

BE IT EEMEMBEEED, that on this day, before me, M. DALE PALMEE Prosecuting Attorney 55th Judicial Circuit, Walter D. Ferrell personally came who, being duly sworn upon his oath, says that, as he is informed and believes, Eichard Allen French on the 12th day of January, A.D., 1969, at and in the county of Hendricks and State of Indiana, then and there committed the crime of theft in that he knowingly, unlawfully and feloniously obtained and exerted unauthorized control over property of Walter D. Ferrell, to-wit: 1955 Mercury automobile of the value of $110.00, intending to deprive the said Walter D. Ferrell permanently of the use and benefit of said property, the same being contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.

/s/ Walter D. Ferrell

Subscribed and sworn to before me, this 13 day of January, A.D., 1969.

/s/ M. Dale Palmer Prosecuting Attorney 55th Judicial Circuit

Approved by me: /s/ M. Dale Palmer Prosecuting Attorney”

Exhibit B is the warrant issued in response to the filing of Exhibit A, and the Sheriff’s return thereon, and in pertinent part reads as follows, to-wit:

“STATE OF INDIANA, HENDEICKS COUNTY, ss:

THE STATE OF INDIANA, TO THE SHEEIFF OF HENDEICKS COUNTY OE ANY OTHEE PEACE OFFICES OF THE STATE OF INDIANA, GEEETING

You are hereby commanded to arrest EICHAED ALLEN FEENCH if HE may be found in your bailiwick, so that you have HIS body before the Judge of the Hendricks Superior Court, instanter, then and there to answer the State of Indiana on a charge of THEFT and abide the order of the court thereon and return this writ.

WITNESS, the Clerk and seal of said court, this 13th day of January, 1969.

/s/ John Gambold, Jr., Clerk.”

“Came to hand this 13 day of Jan., 1969. Was served as commanded by reading to and in the presence and hearing of the within named Richard Allen French, and by taking her (sic) into my custody.

Was served as commanded by leaving a true and correct copy at the usual place of residence of the within named

Done this 13 day of Jan., 1969.

Merle Funk

Sheriff Hendricks County”

Exhibit C is a copy of the court’s minutes relative to this cause and in pertinent part reads as follows:

“MINUTES OF THE COURT

1-13-69

Approved affidavit filed (H.I.), Warrant ordered issued to Shf. of Hend. Co., or any other peace officer of the State of Ind., Bond set at $3,000.00. Warrant issued accordingly.

1-13-69

Comes now the State of Indiana by M. Dale Palmer , Prosecuting Attorney; comes also the defendant, Richard Allen French, in person and without an attorney for arraignment. Defendant, Richard Allen French states in open Court that he is 17 years of age on this date. The Court being duly advised now transfers this matter to the Juvenile Court with reference to said defendant and the bond is to remain in the amount of $3,000.00.

1-22-69

Court having received the Clerk’s certificate that the Hendricks County Juvenile Court in Cause No. J-69-4 has waived juvenile jurisdiction and transferred said cause back to Hendricks County Superior Court, the Court now reassumes jurisdiction of the defendant, Richard Allen French.

1-22-69

Court having reassumed jurisdiction, comes now the State of Indiana by M. Dale Palmer, Prosecuting Attorney, comes also the defendant, Richard Allen French for arraignment. Defendant advises the Court that he does not have an attorney. Court being duly advised, now appoints Thomas O’Brien as pauper attorney for defendant. Defendant is remanded to the custody of the Sheriff of Hendricks County until good and sufficient bond in the amount of $3000.00 each has been furnished and approved.

2-10-69

Comes now defendant and files Motion to Quash Arrest Warrant (H.I.) and Memorandum in Support of Motion to Quash Arrest Warrant (H.I.). Court sets this matter for hearing at 11:00 o’clock A.M. on the 20th day of February, 1969. (Clerk to notify all attorneys of record)

2-14-69

Comes now H. Dale Palmer, Prosecuting Attorney of the 55th Judicial Circuit and files Probable Cause Affidavit (H.I.). The Court being duly advised sets this matter for hearing at 11:00 o’clock A.M. on the 20th day of February, 1969. (Clerk to notify all attorneys)

2-20-69

Comes the State of Indiana, by M. Dale Palmer, Prosecuting Attorney, comes also the defendant, Richard Allen French, in person and with pauper attorney, Tom O’Brien. Court hears argument on motions to quash arrest warrant and probable cause affidavit and takes ruling thereon under advisement.

2-24-69

Court being duly advised, overrules defendant’s motion to quash arrest warrant and overrules defendant’s motion to quash probable cause affidavit. Court finds that the original affidavit filed which had been approved by the Prosecuting Attorney for the 55th Judicial Circuit, along with the probable cause affidavit was sufficient showing of probable causé for the issuance of a warrant for the arrest. Court further finds that it would be useless of (sic) set aside the warrant issued hereinbefore and then order another to issue in view of the fact that the defendant could not be discharged and no harm has been done since the defendant has been in custody of the Sheriff under arrest prior to the filing of the original affidavit. Court, therefore, does now overrule defendant’s motion to quash warrant for arrest of defendant. The Court now advises Tom O’Brien, attorney for defendant, that arraignment is set for 10:00 A.M. on February 25, 1969, and Mr. O’Brien requests additional time to discuss the matter with his client, and arraignment is continued until March 17, 1969, at 9:00 a.m. (Clerk to notify Prosecuting Attorney, Sherif and Tom O’Brien) (emphasis added).

2-26-69

Defendant files verified motion for continuance (H.I.). The Court being duly advised grants said motion and continues this matter until March 21, 1969, at 9:00 a.m. (Clerk to notify all attorneys and Prosecuting Attorney).”

Exhibit D is the Clerk’s certificate showing waiver of jurisdiction by juvenile court and transfer thereof back to Superior Court and is omitted here as it is referred to at Exhibit C above.

Exhibit E is a copy of the Motion to Quash Arrest Warrant with supporting memorandum heretofore referred to as having been filed February 10, 1969. This exhibit is omitted as it has previously been summarized.

Exhibit F reads as follows:

“STATE OF INDIANA Hendricks County State of Indiana vs. Richard Allen French

In The Hendricks ss: Superior Court 1969 Term Cause No. SCR 69-3

PROBABLE CAUSE AFFIDAVIT

WALTER D. FERRELL, being first duly sworn, says that:

On January 12, 1969, I saw a young man take my 1955 Mercury automobile from my driveway. I chased and caught him, recovering the car, but he got away. He was later caught by the Indiana State Police and identified as Richard Allen French.

/s/ WALTER D. FERRELL Walter D. Ferrell

Subscribed and sworn to before me, M. Dale Palmer, Prosecuting Attorney, 55th Judicial Circuit, this 13 day of February, 1969.

/s/ M. DALE PALMER M. Dale Palmer Prosecuting Attorney

My Term Expires: December 31,1970

CERTIFICATE

I certify that I have served a copy of the foregoing Probable Cause Affidavit upon Mr. Thomas J. O’Brien, attorney for the defendant, Richard Allen French, by depositing a copy of same in the receptacle provided in the Hendricks County Clerk’s Office this 13 day of February, 1969.

/s/ M. DALE PALMER M. Dale Palmer

Exhibit G is a copy of Motion to Quash Affidavit Titled “Probable Cause Affidavit,” omitting heading, signature verification and memorandum in support such motion reads in pertinent part as follows:

“The defendant, Richard Allen French, appearing specially herein by his attorney, Thomas J. O’Brien, for the purpose of filing a motion to quash probable cause affidavit, and for no other purpose whatsoever; does now request the Court to quash the arrest warrant in the above entitled cause on the following grounds:

1. That the affidavit in itself contains facts which, if true, would constitute a legal bar to the prosecution of this defendant, and

2. That there is no authority provided in law for the filing of an affidavit for probable cause thirty (30) days after an arrest warrant has already been issued.”

We have, at some length, set out the record in the case at bar to delineate the issues here for determination. It appears clear to us that two questions are here presented:

A. Must a showing of probable cause before a neutral and detached magistrate precede the issuance of a lawful arrest warrant?

B. If the answer to A is yes, then who must make the determination of the existence of probable cause, and how may the showing of probable cause be made within the framework of existing constitutional, statutory and case law?

It is clear to us that proposition A must be answered in the affirmative. This has been, since 1852, a constitutional requirement embodied in Article 1, § 11 of the Constitution of the State of Indiana, which is identical to the Fourth Amendment of the Constitution of the United States. Article 1, § 11, provides in part that: “No warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” Consequently, since the Constitution provides that the warrant cannot issue except upon probable cause, the showing of probable cause must necessarily precede the issuance of the warrant.

As to proposition B, above, it is a long standing rule in Indiana that the determination of probable cause is a judicial determination to be made by a judge or magistrate, and not a ministerial determination. Wallace v. State (1927), 199 Ind. 317, 157 N. E. 657. In Kinnaird v. State (1968), 251 Ind. 506, 242 N. E. 2d 500, this Court stated that, “a judicial determination is a requirement that goes to the heart of the Fourth Amendment.” In Kinnaird the term “magistrate” was used to describe the type of judicial officer before whom the showing of probable cause must be made, and who must make the determination as to the existence of probable cause, the word “magistrate” appeared in Giordenello v. United States (1958), 357 U. S. 480, and Aguilar v. Texas (1964), 378 U. S. 108, and was carried over into Kinnaird v. State, supra. In Kinnaird the word “magistrate” was given a broad interpretation. As used in that case the word “magistrate” includes the judge of any court of this state authorized to issue process, to accept pleas, to hear and determine cases and to render judgments. The magistrate is a “neutral and detached magistrate” if at the time of the issuing of the warrant, he has no personal interest in the case other than that of performing the judicial duty of determining the presence of probable cause before issuing the warrant. Further, the mere fact that a judge has ruled upon a showing of probable cause does not necessarily disqualify that judge from trying that case on its merits.

The manner in which the showing of probable cause may be made is clearly indicated, we think, in the Kinnaird case, supra. For years the courts of this and our sister states have been able to cope successfully with the problem of probable cause in the preliminaries to the issuance of search warrants, and it seems to us quite reasonable to expect them to do so with respect to arrest warrants. In our opinion, the showing of probable cause may be made in several ways. It may be in the form of an affidavit setting forth enough of the underlying facts and circumstances to enable a neutral and detached magistrate to draw his own conclusions as to the existence of probable cause. The showing may also be made by the testimony of sworn witnesses transcribed by the court reporter and made a matter of record, and which testimony sets forth the facts and circumstances upon which the judicial determination of probable cause may be made.

However, the affidavit setting forth the showing of probable cause for obtaining the arrest warrant need not be the same affidavit that charges the accused with the crime for which his arrest is sought. Further, there is, in our opinion, no need for a hearing to determine probable cause where a grand jury has returned an indictment. The return by the grand jury is a showing of probable cause as at least five of the six members of the grand jury must concur before the indictment can be returned. Therefore, since the grand jury, in returning the indictment, makes the determination as to the existence of probable cause, the probable cause determination need not be made by a neutral and detached magistrate in those cases where the prosecution is by indictment.

Turning now to the question of the effect of the filing of the Probable Cause Affidavit in the case at bar, we hold that inasmuch as the same was sworn to and filed thirty days or more after the arrest warrant was issued it was not and could not have been considered in aid of a showing of probable cause immediately before or at the time of the issuance of the arrest warrant. We agree, with relator that the filing of such affidavit at such late date is a tacit admission on the part of the State of Indiana that there was no hearing or determination of probable cause prior to the issuance of the warrant for relator’s arrest.

Therefore, we must, and do, hold that the arrest warrant issued herein, as shown by the record, was illegally issued in that it was issued without a showing of probable cause as is required by both the Constitution of the State of Indiana and the Constitution of the United States. Kinnaird v. State, supra; Art. 1, § 11, supra; U. S. Const. amend. IV.

Accordingly, since the arrest warrant of January 13, 1969, was illegally issued, it is null and void, and respondents are hereby ordered to discharge relator from custody on said warrant.

However, “since relator has been in custody of the Sheriff under arrest prior to the filing of the original affidavit” {supra, P. 6, entry 2-24-69) we are unable to grant that portion of the relator’s prayer for relief seeking discharge from custody of the Sheriff of Hendricks County. Relator’s petition does not challenge the validity or seek relief from the arrest referred, to by the court in its minutes and that question is not before us, hence we here express no opinion as to the validity thereof.

That portion of relator’s petition which seeks to prohibit respondents from assuming, taking or exercising any further authority or jurisdiction by virtue of the warrant for relator’s arrests over the cause of action entitled “State of Indiana v. Richard Allen French” now pending in respondent court as number SCR 69-3 is hereby denied.

DeBruler, C. J., concurs; Hunter, J., concurs with opinion; Arterburn, J., dissents with opinion; Givan, J., dissents with opinion.