Throop v. State

259 N.E.2d 875, 254 Ind. 342, 1970 Ind. LEXIS 555

• Court: Indiana Supreme Court
• Decided: July 8, 1970
• Docket: 667S23
• Status: Published

Opinions

Givan, J.

The appellants were charged by affidavit with the crime of breaking and entering with an intent to steal a safe, which crime is defined in Burns’ Ind. Stat., 1956 Repl., § 10-702a.

Trial was had before the court without the intervention of a jury. The court found the defendants guilty as charged and sentenced each of them to the Indiana State Reformatory for a period of not less than five nor more than ten years and disfranchised each of them for a period of five years.

The evidence in this case is as follows:

Sometime during the early morning of June 19, 1966, a building owned by Foster & Foster, Inc., located at 618 Central Avenue, Connersville, Indiana, was broken into and a safe containing $44 was removed therefrom. That same morning a car owned by the Appellant William A. Throop in which both the appellants were riding became stuck in a ditch on a country road in Fayette County, Indiana. Wendell Richardson, a farmer living nearby, testified that sometime between 7:00 and 8:00 A.M. the appellants asked him to pull the car from the ditch with his tractor, which he did.

Mrs. Márcele Simpkins saw the car parked on the road shortly after 9:00 A.M. while she was on her way to church. At that time she wrote down the license number in a book she keeps in her car for that purpose. Later that morning Mrs. Simpkins’ husband saw a safe, later identified as the safe which had been taken from Foster & Foster, Inc., in a small gully on his farm. The safe was found approximately a half city block from where Mrs. Simpkins had seen the automobile which she described as a red Chrysler convertible.

Police officers testified that on the afternoon of June 19, 1966, they kept the Appellant Throop’s car under surveillance for several hours, having received its description and license number from Mrs. Simpkins. At approximately 5:00 P.M.that afternoon they arrested the appellants without a warrant, while they were riding in the automobile. They immediately conducted a search of the Appellant Throop and found a key in his pocket which was later identified as a key to a night deposit money bag belonging to Foster & Foster, Inc. About one hour after the arrest the police officers without a search warrant took paint samples from Appellant Throop’s automobile and also paint samples from the safe. Red paint matching the paint on appellant’s car was removed from the safe, and gray paint matching the paint on the safe was taken from the automobile. The evidence also showed the appellants had been seen driving on the streets of Connersville between 4:15 and 5:00 A.M. on the morning of June 19, 1966, and that the store in question had not been broken into as late as between 4:00 and 4:30 that morning.

The appellants claimed the trial court erred in admitting into evidence over their objection the key taken from Appellant Throop and the paint samples taken from the car subsequent to the arrest.

Appellants claim that the search was illegal because the arrest was unlawful for the reason that the arresting officers lacked probable cause to arrest the appellants.

In view of the above evidence it seems obvious that the arresting officers had ample probable cause to believe that the appellants had committed a felony. Under the circumstances they were fully justified in making the arrest. Patterson v. State (1970), 253 Ind. 499, 255 N. E. 2d 520, 20 Ind. Dec. 290.

Appellants also claim the evidence obtained by search was erroneously admitted because no warrant was obtained by the officers prior to making the arrest, although they admit following the appellants around town for quite sometime prior to making the arrest. There is ample authority for the proposition that when it is practical for officers to obtain a warrant prior to an arrest, they should do so. However, it is pointed out that the evidence in this case is that the crime was discovered early on Sunday morning, and the appellants were arrested around 5:00 o’clock Sunday afternoon. This was at a time when the courts were closed. In view of the amount of information which the officers had at the time of the arrest, it would be most unreasonable to hold that they should have waited until Monday morning in order to obtain a warrant before making the arrest. We also observe that even had this been at a time when the courts were open the appellants were driving in an automobile which the police officers had reasonable cause to believe had just been used in the perpetration of a felony. This would justify the arrest of the appellants without a warrant, for even a few minutes’ delay in obtaining a warrant under these circumstances might result in the escape of the subjects. We hold that the officers were thoroughly justified in making- the arrest without a warrant. Patterson v. State, supra.

An additional question is raised concerning the search of the automobile. The Supreme Court of the United States held in Preston v. U. S. (1964), 376 U. S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777, that it was improper for police officers to conduct a search of a motor vehicle without a warrant when their possession of the vehicle resulted from the taking of the owner into custody on a charge of vagrancy. This position, however, was further explained in the case of Cooper v. Calif. (1967), 386 U. S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730. The court pointed out that in situations such as found in Preston where the defendant is arrested on a charge unrelated to his operation of the motor vehicle, the fact that he was in a motor vehicle did not warrant the law enforcement officers’ search of the vehicle without a search warrant. However, the court pointed out in the Cooper case that the officers had probable cause to believe that Cooper was actually using the motor vehicle as an instrument to facilitate the perpetration of his crime. The officers were then justified in conducting a search of the motor vehicle in conjunction with the arrest. This court had occasion in a recent decision to discuss the Preston and Cooper decisions in detail. See Patterson v. State, supra.

In the case at bar the automobile was not searched until the officers had towed it to the garage. This, however, was entirely reasonable under the circumstances because the so-called search was not so much for the fruits of the crime as it was to obtain paint scrapings from the car and from the safe in question for comparison. This was the type of search which by its very nature had to be conducted in surroundings where laboratory techniques could be employed. The officers were justified in delaying this search long enough to insure that their tests could be made accurately. We hold that the rule laid down in Cooper and in Patterson, supra, are applicable in this case, and the taking of the car and the subsequent obtaining of paint scrapings therefrom was a type of search which the officers were entitled to conduct without first obtaining a search warrant. Good police work and in fact the safety of the public demands that when arrests are made under these circumstances the automobile in question be searched in conjunction with the arrest of the accused. See McCoy v. State (1958), 237 Ind. 654, 148 N. E. 2d 190.

Appellants also argue that the evidence in this case is unreasonable in that logic demonstrates the failure of the capacity of the appellants to accomplish the crime alleged. They point to the fact that they had been drinking intoxicating liquor at the time of their arrest, and that it is unreasonable to believe men in their condition could have carried a heavy safe up a flight of stairs and loaded it into an automobile, and then unloaded it several miles out in the country. We have repeatedly held that we will not weigh the evidence. Kindred v. State (1970), 254 Ind. 73, 257 N. E. 2d 667, 21 Ind. Dec. 196. The trial court heard this evidence, and we cannot say that there is a lack of logic in the trial court’s determination that the appellants could and did in fact accomplish the removal of the safe.

The decision of the trial court is affirmed.

Hunter, C.J., and Arterburn, J., concur; Jackson, J., dissents with opinion in which DeBruler, J., concurs.