Williams v. State

397 N.E.2d 1088, 73 Ind. Dec. 264, 1979 Ind. App. LEXIS 1496

Opinions

HOFFMAN, Judge.

In a trial to the court, Williams was found guilty of the unlawful possession of heroin and sentenced to a term of five years in prison. The sole issue presented in this appeal is whether the trial court erred when it overruled Williams’ motion to suppress the heroin as the fruit of an illegal search.

On February 8, 1974, at approximately 9:00 P.M., six police officers went to the residence of Williams and one Beverly Smith in order to serve a warrant for Smith’s arrest. Three of the officers went to the rear of the residence and knocked at the door. When Smith answered she held a paring knife in her hand. The officers asked Smith to put the knife down, which she did. Upon being informed that there was another person in the house, two officers, Colby and York, proceeded to walk through the house to check for other persons who might have firearms or other weapons which might endanger their safety. In so doing they discovered Williams cutting heroin in the bedroom. Williams stood up and abruptly moved toward Officer Colby, but Colby leveled his gun at Williams and ordered him to stop.

Meanwhile, another officer, Roberts, had taken up a position at the front of the house in order to prevent anyone from escaping from the house. Next to the front door was a window with its shade almost completely drawn. Roberts bent over and looked through the waist-high, three-inch gap between the bottom of the shade and the window frame. When he did so he was able to see Williams cutting heroin in the bedroom. Moments later York opened the front door and Roberts informed him of his observations, but not before Colby had entered the bedroom and discovered Williams himself.¹

On these facts Williams argues that the heroin discovered by the officers is inadmissible as the product of an illegal search. In support of that argument he relies on the rule in Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, which limits the scope of a search incident to an arrest to the person of the arrestee and the area within his immediate control.

But the rule in Chimel is not without exception. This Court has recently held that police officers may justifiably enter areas, of a house other than that where an arrest occurs when they have reason to believe that other persons on the premises may pose a threat to their safety. See: Ingle v. State (1978), Ind.App., 381 N.E.2d 887.

Other courts have reached similar conclusions in such situations. See: U. S. v. Broomfield (E.D.Mich., 1972), 336 F.Supp. 179; People v. Mann (1969), 61 Misc.2d 107, 305 N.Y.S.2d 226. Indeed, a protective search of areas within the control of persons other than the arrestee was upheld in U. S. v. Manarite (S.D.N.Y., 1970), 314 F.Supp. 607, affirmed 448 F.2d 583 (2nd Cir., 1971), cert. den. 404 U.S. 947, 92 S.Ct. 287, 30 L.Ed.2d 264. But see: U. S. v. Gamble, 473 F.2d 1274 (7th Cir., 1973); U. S. v. Cooks, 493 F.2d 668 (7th Cir., 1974).

This is a case where such protective measures were reasonable, and the court below so found. According to the testimony of Officer Colby, he and his partner had previously experienced problems posed by persons whose presence was unknown to them at the time they sought to make arrests. As a result Colby thought it necessary, upon learning of Williams' presence, to locate him in order to prevent any threat to the personal safety of himself and the other officers. This evidence, the credibility of which this Court cannot weigh on appeal, plainly establishes circumstances permitting a protective sweep of the house. U. S. v. Manarite, supra. Consequently, the court below committed no error when it concluded that the officers properly entered the bedroom and seized the heroin which was in plain view.

It is necessary to emphasize, however, as did the courts in Broomfield, supra, and People v. Block (1971), 6 Cal.3d 239, 103 Cal.Rptr. 281, 499 P.2d 961, that had the officers been conducting an evidentiary search rather than a limited protective sweep when they discovered the incriminating evidence, their actions would have exceeded the bounds of Chimel. Under such circumstances the seized evidence would be rendered inadmissible. But such a search was not conducted in this case; rather, the heroin was discovered during the course of the protective sweep before Officer Colby learned that a fellow officer had observed Williams cutting the heroin by peering through the bedroom window.

• Accordingly, the judgment below is affirmed.

Affirmed.

GARRARD, P. J., concurs. STATON, J., dissents with opinion.

1 . Because the heroin was admissible on the basis of Colby’s discovery, it is unnecessary for this Court to decide whether Roberts’ discovery alone would have been a sufficient basis for its admissibility.