Petition for Writ of Certiorari — Crim v. Indiana

Supreme Court brief1972

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IN THE chi ee tay 4 >

Supreme Court of the Unitas

OcroBer Ter, Me

JOHN. C. CRIM, a/k/a BOB MILLER,

. ; Petitioner,

; e “TS, i °

THE SPATE OF INDIANA, | ,

: = 5 RS -. BRespondrit:

. PETITION FOR WRIT OF CERTIORARI ai THE —

SUPREME COURT. OF INDIANA.

”°

Myron J. Hack;

609 Odd Fellows Building,

South Bend, Indiana 46601,

“* Counsel for Petitioner,

THE GUNTHOR EN PRINTING C %, CHICAGO

ad .

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TABLE OF CONTENTS. ae ;

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os : PAGE

I. Opinion Below ........ RON The oe a) eons ce

‘ IL. Jurisdictiénal Statement ....... ious een

III. Question Presented for Review... oo ise 2

IV. :-Constitutional Provisions Involved cM aerane ek ok }

V.. ‘A. Concise Statement of ‘the Case C ontaining ;

Facts Material to ‘the on Presented for

Review

—~

. VEE Reasons Relied nae hes ‘Allowance of the Writ 12

* _ MIS ak he eee tes eS ae ue |

.) caer TABLE OF AvtHoritigs. : °

Cases. a oa

Carroll v. United States (1925), 267 U. S. 132...... .16, is

Chambers v. Maroney (1970), 399 U. S. 42. .12, 14, 15, 16,17

Chimel v. California (1964), 376 U. S. 364...... Ne 12 |

- Coolidge v. New Hampshire _— 401 a S. 2.4 $l

» SS. Ct. 2022... Sepa LG RAH VeRKE AMO po Awa ees :. 4g

ii v. California (1967), 386 U.S. 58e.......... 17

\ Ker - California (1963), 374 U. 8.23. .0000...00000.. ~~

| Mapp v- Ohio (1961), 367 U. S: 643 ee AE ESP ae we Ee

Preston v. United States (1964), 376 U.S. 364. £12, 13, 17

Wolf vV. Colorado ite 338 U.S. 25

Pee pe, ieee 12

Statute.

Title 28, United States Code, Seetion 1257(3). fe ‘se

| ii:

o: ; ©

Constitution.

Fourth and Mourteanth Amendments to the Constitu-

tion of the usted -Gtates:......5.1052.--3 aces. ae

Rules. 3

— # Ryles 19(a) and 23 of the Rules of the Supreme Court

of the United States.......00.0.002.. Be Ae aad 2, 11

— a if

ee at a

3 Page

an Supreme Court of the United States

ie OcTOBER TERM, 1971.

No.

JOUN: C. CRIM, a/k/a BOB MIL LER, |

. See Pe ttaitioncr,

vs. .

THE STATE OF INDIANA, va

~ Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF INDIANA.

ae ee We

To the Honorable the Supren me » Court

of the: United States: |

. Your Pogue: dala «. Crim, respectfully prays thet

a writ of certiorari issue to review and reverse thé judg-

“-ment of the Supreme Court’ of Indiana, entered in this

cause on August 12, 1971, as to which a timely- filed Peti-—

tion for Rehearing was denied on October 29, 1971. |

In suppart of ° his petition, | ‘Petitioner _Tepresénts : as -

follows: :

L |

OPINION BELOW. © © —*_

‘The opinion of the Supreme Court of Indiana’ is un-

ge ally reported in the National Reporter System at 2

. KE. 2d 85. It is not yet officially reported. oe

_ @

Siege,

copy of the opunion. and a complete copy of. the oder

the Supret ne Court of Indiana denying Potitioner’ s oe

tiled Petition for Reheari ing are ¢ reproduc ed i ‘in the Appendix

to this Petition. . + Rwy aw fhe .

I. Rohs ate

JURISDICTIONAL STATEMENT. lat

The Jurisdiction of this. ‘ourt. is invoked under Tithe

United States ( ‘odes’ § 1257(3) and. Rule 19(a), of the alas

of this Court, to review a décision ‘of the Supreme Court

of Indiana. as-to a’ federal ‘question ‘of substance, decided

wby that ( ‘ourt ina way not in aceord with applicable de-

cisions of this Court, = es fetal

A. Date of Judgment Sought To Be Reviewed,

The Judement of ‘the Supreme. Court of Indiana» Wi is

entered-on August 12 » WNT. : + a

a . :

B. Order on. Petition. tor Rehearing.

i stianes timely -tiled his Petition for elicaviing: that is

., Within twenty (20) days after August 12, 1971; the Supreme

( ‘ourt of Indiana denied rehearing on October 2, —

IIL. cae, eet

QUESTION PRESENTED FOR: REVIEW.

| _ Where | law esiforeément officers make a owar vantless .

probable-cause arrest and as -a‘part of “a warrantless

probable- cause personal seareh: of the Rea s body dis-

cover and seize all the evidence they gad probable cause to

believe-was in his possession, does & subsequent warrantless .

search of the arrestee’s s ynpounded motor Vehicle constitute .

an unreasonable search, making the incriminating evidence.

seized trom the motor vehicle subject to i Four ee Amend-

ment it exclusionary rule?- . :

* .-

£3

IV.

CONSTITUTIONAL PROVISIONS IN VOLVED.

‘The Fourth Amendment to the ( Constitution of the United

States provides:

. ‘The yight of the ele: to be secure it their persons,

houses, papers and effects, - against , unreasonable

searches and seizures, shall ‘mat be violated, and no |

warrants shall issue, ‘but upon probable cause, sup-

_ ported by oath or affirmation, and ‘particularly deserib-

-Ing. the place: to be Searched, and the we rson or things

to. be. seized.

. The F pintecnih: Ame ndment to the ‘Cunntleeiion of. the

_ United. States provides: in relevant part as follows (Sec-

tion q):, ne ae EN

s state shall ‘make or enforce any law oie’ shail

abridge the privileges-or immunities of citizens of the

United States; nor shall any state deprive’ any person

of ‘life, liberty, or property, “ee due process of

awe So ‘ i

o ae V. 2 : eal

| A CONCISE STATEMENT OF 28 CASE. .

The case originated i in the Pulaski Cicnlé C ourt, Pulaski ’

County, Indiana, where Petitioner was charged | with the

* erime of theft of certain hogs on or about August 3 or 4,

1967. The venue. of the: case was moved on Petitioner’s

Motion to the Starke Circuit Court, Starke County, Indiana, |

‘where it was'tritd to a jury which; on September"25, 1968

returned its verdict against Petitioner, finding _ a guilty

__ of the crime'as charged.

After pre-serttence veetigation as in such cases re-

quired by the law of the State of Indiana, Petitioner’ w as on.

October 11, 1968 senténced to ah indeterminate 1 to 10

jyear term inthe Indiana State Prison. |

|| ° vss yeh

. 4

Within the times and by the procedures required by ap- |

plicable Indiana law, Petitioner filed his Motion for a New

Trial; after this Motion-was denied, Petitioner perfected a

regular appeal to the Supreme Court of Indiana which’

* affirmed tite judgment of the Trial Court on August 12,

1971. Petitioner’s Petition for Rehearing was denied on

October 29, 1971. ; ., ° :

The issue Petitioner urges here was first raised in the

Starke C ireuit Court ,by his Motion to Suppress, secking

an order suppressing the evidence seized during and follow-

ing the search of which he here complains. After hearing,

the Trial Court denied the Motion to Suppress.

Petitioner renewed and preserved his contention at all

stages throughout the trial and the appeal to the Supreme

Court of Indiana, first, by in-trial motions challenging the

_ admissibility of the disputed evidence ; then by collecting in

his Motion for a New: Trial all his contentions of error on

the ultimate issue and on the Trial Court rulings on the

. procedural steps taken to preserve the question; and,

"finally, by presenting these claimed errors to the Supreme

Court of Indiana by way of his Assignment of Errors and

by argument of these issues in his brief on appeal. *

The federal questions presented here were first raised in

the Trial Court a Aare s Motion to Suppress. Omit-

- ting the formal paits, that Motion reads as follows (Record,

p. 25, line 11 to y 26, lime 20) :

JouxC. Crim, being first duly sworn: upon his oath,

_ says:

1. That he is the defendant i in the above entitled

cause and that he was charged by way of affidavit with

the crime of theft on August 9, 1967.

2. That on the 8th day of August, 1967, your affiant

- Was arrested by two police officers of the Kosciusko

County Sheriff’s Department; that your affiant was

then taken into custody without warrant.

3. That at the time affiant was arrested by said

police officers of the Kosciusko County Sheriff’s De-

partment,*without the-consent of. affiant and. against

his will, a search of the affiant and the vehicle’ owned

-by affiant which he was then and-there operating was

~ conducted by said police officers of the Kosciusko

-County Sheriff’s Department.

4. That at the time your affiant was arrested by the

aforesaid police officer, he was not engaged in the com-

mission of a felony nor “did any probable cause exist

to believe that he had committed a felony or was about

to commit a felony; that at the fime your affiant was

arrested, he was net engaged in-the commissign of a

misdeméanor in the presence of the aforesaid police’

officers ; that said search was not incidental to a lawful

arrest; that-said arrest was unlawful.

5. That as a result of said search, certain articles

‘were taken from the person of your affiant and certain —

articles-were removed from thé affiant’s vehicle.

/~6. Affiant further alleges that said arrest and said

search were in violation of his constitutional rights

under Article.I, Section 11 of the Constitution of the

State of Indiana, and said arrest and search were also

in violation of thé Fourth Amendment to the Constitu-

tion ‘of the United States. -

Wuererore, Affiant prays that the articles obtained

by said aforesaid police officers as a result ofthe un-

lawful segreh and seizure of affant and the unlawful

arrest of your affiant be suppressed and rejected and

that the State be barred frou: tntroducivgthe same into

~ evidence upon thé trial of this cause, and that the State

be further barred from introducing any testimonial

evidence relative to these articles or relative to the

search, seizure and arrest of your affiant.

A verbatim transerjpt of the hearing held on the Motion

to Suppress will be found in the Record at p. 79, line 7 to ”

p. 169, lme 26. A summary of the evidentiary record on

which the Trial Court based iis ruling is as follows:

P ()

Petitioner’s counsel called as witaesses instipport of the

Motion to Suppress and Rejest Kvidence certain police

ofieers and the manager of the fivestock sale barn where

the stolen hogs were sold. "The State of Tavclisannee called aa

police oflicer and Iwo ti armers, the owner of the hogs and

his father.

In substance, the evidence given at the hearing on the

Motion to Suppress established that sometime duriiyy the

night of August. 4.1967, forty seven hogs were stolen from

the farm of Everett Larry Miller, Jr, in the southern part

of Pulaski County, Indiana. No one saw the theft om

process, ver was any identifying evidence found at— the

SEeCTIC,

Certain benim latex identified by the owner of the stolen

hows as his. were delivered to the Claypool Sales Barn at

Silver. Lake, Indiana (in Kosciusko County) during: the

night. Pursuant to the wsual custom, the person delivering

the hogs tacked up a hand-printed small sign on the pen

inte which the hoks were placed, identifying the consignor

of the hogs as one ** Bob Miller.

The owner of the hogs hi ad alerted the P ulaski* ¢ ‘ounty

Sheri? of their theft and he in turn: had advised law en-

forcement officers in surroundmg counties. The owner's ”

father v isited the Claypool Sales Barn and, suspetting that

certain- hogs found there were his sons recently stolen

hogs, so advised his son who ultimately went to the Claypoo!

Sales Barn and identified the hogs as -his.

Various police proce edures were followed, including w hat

is ealled a ‘tstakeout’™ and the Claypool Sales Barn pér-

sonnel were enlisted as aides in the investigation.

Among other things, the sales*barn personnel observed

that two men appeared, asking whether, as was the regular

eystom. the ‘Bob Miller hogs had sold,’ and were advised

that they hatl not and that the callers. would have to return

~’

a 7

ata later time in order to’ receive the cheek realized upon.

the sale of the hogs. At all these times, the personnel of

the sales harn were acting in cooperation with the police

department, at

» On the morning of August &, 1967, a person who was not

identified appeared at the sales barn and, upon asking

for the check for the Bol) Miller hogs, was given the sales

harncs cheek in the sum. of $147.07, payable to ‘Bob

Miller,’ and also, was given what later was identified. i

the reeord as a ‘purchase memorandum,” being a one

page detail of the transaction, .

These two items were received -in evidence at the trial,

collectively identified as State’s Exhibit 1 (apparently be ~

cause they were sfapled together when obtained by the

police). These were obtained from Petitioner’s boot as a

result of a custodial “skin seareh,’? apparently earried-out

for iInventary purposes. | . “s F

After the cheek and the purchase memorandum were re

ceived, the individual accepting they left. the Claypool

Sales Barn’s premises in a red and white Ford pickup

truck. One ¢ of the sales baru’s yard personnel copied ats

license number. - Another of. the sales barn’s personne!

followed the truck. . .

After the trnek-and the following sales barn’. cinployee

had departed, law enforcement officers arrived and were

informed of that mornine’s developments. They left in

pursuit of the 28 En route they encountered the sales

harn’s employes who had been following it and, when he

gave them instructions as to the read and direction in

which it was moving, the law enforcement officers (pro-

ceeded to overtake it.

Flashing their revolving lights. the officers forced it te a-

es and, without se advising him in any partic lar phrase-~

r by the use of the.word ‘arrest,’ they arrested Peti-

tioner and ordered him into their patrol car. The piekup

truck was moved by one .of the arresting officers fp the

Kosciusko County jail at Warsaw, Indiana, as was Peti-

tioner, : |

At the Kosciusko County jail, as noted, Petitioner was

‘*skin searched,’’ and the two exhibits referred fo above

Were taken from his person. At all these times his pickup

truck was - impounded in the eustody _of the Koscinsko -

— County -Sheriff*s Department. Although abv ously under

arrest, Petitioner was not at thix point giten any oral

statement te thatecffeet, |

Unknown to him, a pre- printed form of ptatic citation

(called ‘in Indiana a “Utiiform “Traffic Ticket’) was made

out against him and placed in the property drawer assigned

for his personal effects, charging him with a violation of an

-oliseure Indiana motor vehiele regulation prohibiting ‘‘ob-

structed license plates,”’ a charge apparently based.upon a

fanciful pretext invented by the arresting officers and hay-

ing a surface plausibility due to the design of Petitioner's

a pickup truck, on which the heavy back Dumper rests slightly

above the lower rim of the. single license plate.

While Petitioner was in his cell, and at varions times

throughout She day, the law enforcement officers searched

his pickup truck and, among other things, found the **hook-

let of blank bank checks’? the introduction of which into

evidence gives rise to Petitioner’s Fourth’ Amendment.

- claims here. ,

The undisputed evidence hoth ‘at the heayine on the

Motion to Suppress and Reject Ey idence and at the trial

was that the arresting officers did not liave an arrest war- - |

rant at any time prior to or following their taking Peti-

tioner into custody. They did ‘not sek or obtain at any

time any kind or type of search w ar rant. .

The Trial Court ruled that all physical evidence taken

from the person of the Petitioner as well, as that seized

upon search of his pickup truck was admissible for Fourth

Amendment purposes (although some items, not here in.

issue, were rejected on other grounds). -

Petitioner does not here challenge the admission into

evidence of State’s Exhibit 1, being the two articles (check

and purchase memorandum) taken from: his person as a

result of a skin search. His challenge is limited to the

.admission into evidence of the checkbook taken in a war-

rantless search of his pickup truck.

Note: Petitioner-.alerts the Court to a glaring record

defeet, apparently ove ‘rlooke < by his state- court appellate

counsel at the time, of. preparing the Petition for Rehcar-

ing. The Supreme Court of Indiana lightly dismissed Peti-

tioner*s Fourth Amendmeni questions on the grounds of a

_ hybrid ‘‘mootness-harmless error’’ rule. The scope of that

ruling does not, however, reach the evidentiary article—

described as a ‘‘ booklet of ‘bkank bank- checks *’—the atlmis-

sion of which raises the sole issue Petitioner asserts in this

Court: for it appears that the Supreme Court of Indiana

plainly misread the record when it stated at page 2 of its

-opinion (Appendix, p. ee

The booklet of blank checks was never offeréd in

evidence, and thus no question is presented with re-

spect to it.

This ix an inenrably erroneous statement—incurable be-

cause there is no procedure in Tndiana. appellate practice

for a subsequent Petition for Rehearing nor sufficient time

within which to fashion a procedural device for this occa-

sion and adhere to the time limits governing the filing of |

this Petition: and erroneous because the exhibit, identified —

as Defendant’s Exhibit No. 3 on hearmg on Motion to-

Suppress (Record, p. 119), was re-designated as State's

ee ; *: . «

eS me

eer? Exhibit No. 8 and admitted in evidence at the trial (Record, :

p. 283, line 20 to p. 284, line 7):

** Mr. Tax KERSLEY: The State now tenders into evi-

dence State’s Exhibit Number 8

tow Mr. Francescnint: Same siidathies before made.

Tine Court: Show it over-ruled and admitted. into

"ev idence : . :

Mr. Tankersiey: | would like to display it to ‘es

jury. 2

My Francescuint: And for the further objection

there is no evidence that this is the properts of the

‘defendant.

Tur Courr: Over-ruled. 7

(Whereupon State’s. Exhibi{ } Number & for identifi-

, cation wats. receive ‘din evidence and exhibited to the

jury.) ee

Rerorrer’s Nore: For State’s Exhibit 8, please see

~, Defendant’s Exhibit 3 on hearing’ on Motion to’ Sup-

press and Reject Evidence. “

In one sense, then, the precise issue Petitioner, asserts

here has not been treated by the Supreme Court of Indiana.

It may be a reasonable inference that that Court’s ‘moot-

ness-harmless error Youle would have been applied to the

admission of the illegally "seized check book: but, if so, its

decisiot would fail to distinguish between warrantless

probable cause searches of an arrestee’s person and war-’

rantless searches of impounded motor vehicles; and this’

would present an additional federal question ‘of substance : ’

deprivation of federally- protected rights }f constitutional

- dimension by applieation of a harmless error standard

substantially less rigorous than the federal standard, which

is that the error must be harmless: beyond a reasonable. '

- doubt. —: oes .

Given the’ procedural void that exists and the relentlgss |

‘time limits that obtain, Petitioner presents his-reasons for

- allowance of the Writ under the belief that, even if it had

“not misconceived the Record, the Supreme Court of Indiana *

would have decided the Fourth Amendment issue he argues

m a manner not in accord with applicable .decisipns of

this Court: . .

The issue was preserved for appeal by the -following

specification i in. Petitioner’s Motion for a New Trial (Rec-'

ord, p. 72, lines 10 to 17):

C tomes now the: defendant i in the abéve entitled cause

and moves the court for a new trial thereof. upon the.

following grounds and for the following reasons:

1. Irregularities in the proceeding of the court and

orders of the court by Which the defendant was pre-

‘vented from having a fair trial in this; to-wit:

‘ (a) The court erred in wnendion the defend-

ant’s Motion to Suppress and Reject Evidence.

The issue was further preserved for appeal by iiglusion

in Petitioner’s Assignment of Errors, which reads | as fol- .

lows (Record, p. 1, lines 9 to 15):

The Appellant | avers that there i is manifest error in

the judgment ‘and proce eedings in. this cause which is

prejudicial to Appellant in this:

1. The court erred in overruling Appellant’s Mo-

tion for a New Trial. : .

2° The court erred in overruling Apfellant’s Mo-

tion to Suppress and Reject Evidence.

For the foregoing reasons, Petitioner veapoctfully sub-

mits that the féderal questions presented here were tin@ly

and properly raised at all requisite stages of the proceed-

ings below so as to give to this Court the jurisdiction

required by Rule 23 to review the judgment on a Writ of

Certiorari.

oa eee _ - @

: REASONS RELIED UPON FOR ALLOWANCE OF THE WRIT.

Petitioner asserts that the rules of the Trial ‘Court,

affirmed by the Supreme Courtot Indiana, treat the fourth

Amendment issue ina Way not in accord with applicable

decisions: of this Court, as emunciated in the following

CASES:

Wolf v. ¢ eee (1949), ons “Sta:

si v. Ohio (1961), 307 . i es :

Whe . ‘alifornia (1G), 24. S. oD:

( apne v. California (19699, 39D : Ss oad:

Preston vy. United States (1904), 370 UL SL. 64;

Chambers vx. Marouen (100), ey U.S. 42.

‘ Loe

Petitioner respectfully vitiniie th: ul a-svnthesis of the:

teaching of the etted cases, most of which are collected,

and disetissed in the latest Fourth Amendment ease enin-

naging From this Court, Coolidge ve Vevw Mainpshire (1971),

LU SS . 91S. Ct. 2022, sets up the following rules

coverning ‘warrantless searches of motor vehicles : such

searches may lawfidly ‘be conducted if but only if one of

the following three conditions obtajns (a) the seareh is

incident to a lawful arresf: (b) there is ai the time of the.

search probable cause to make it and it either is imprac-

ticable or superfinons to obtain a warrant: and (e) such

a seareh may be made where there are additional exigent

eirenmstanecs justifying it.

- Tt is undisputed in this Reeord that the search of Peti-

‘tioner’s pickup truck was without warrant. It. wes con--

dueted (at the Kosciusko Coimty Sheriff's 6ffiee) after

Petitioner was in eustody and outside the trnek,-thus at

a time and place absolutely depriving Petitioner of any

opportunity. to seize a weapon or destroy any evidence.

| ae ; °

ahi 6 f “¢ oa

No object was in plain view, particilarly the checkbook

introdueed in- evidence over Petitioner's objection.

‘After Petitioner Was in custody. and locked up aD the

‘Kosciusko ( ‘ounty jail, his pickup truck was in the custody

and: possession of law. enforcement officials at all. eritical

limes. There was nothing about ‘the circumstances that -

would: have made it) either impracticable, or superfhious

to obtain a warrant calling for. the search of the pickup

truck, particularizing with reasonable spe cifie ity the articles

if any that the law enforcement agents then had: probable

cause to believe would he uncovered by such seareh.

Consistemly -since Preston ve United State s- (1964), 376°

VW. S. 364, “Té|nee an accused is under arrest and in

custody, then a search made at another. place, ‘Without a

warrant, Is simply not ineidént to the varrest.”?) Any ques- .

tion concerning the validity of Petitioner's arrest asne,

simply cannot have been a part of the state court ce

that. the search of his pickup truck was ineidept to that

arrest.

Although it is not in any. sense clear in the record, Peti-

fioner concedes for present purposes that he was arrested

on the highway (without a warrant) beeause the arresting:

officer thought he had been involved in what has been calle d

in the’ record the theft of.the “Bob Miller hogs,” or,

at least, in an attempt.to. dispose of the hogs after their

theft. Petitioner does not here arg ne the validity of his

arrest, as. it. apparently was never challenged either mn

the Trial Court or in the Supreme C ourt of Indiana. Sinee,

therefore, the arrest was without warrant, it follows that

is was made purely on the basis of probable canse for

arrest,

_As Petitioner reads this Court's Fourth Amendment

‘ases, it manifestly does not follow that there was implicit

within the probable | cause justifvi ing the arrest probable

eause for a search of oe pickup truck, especialy in the

CLPCTIS Eanes: disclosed. i in this record, where the seareh

; j : , “.

was condteted after P ian owas safely th eustody and

when. more than ample fime was ayglable in whieh. the

searehing and seizing officers: could: 7 npplied tor aud

obtained: a tie seareh warrant from oa neutral ane

detaehed may istrate, om P

Theoe run. at Pe Litioner ‘s Fourth Ame nde ott aerecueent

is Lhat the undisputed faets of this case are distilguish ahle

1 prine iple from those whigh bottomed this Court's opin”

lon an ¢ ‘hambers Vv. Maroney (W970), 399 TLS. 42, Phas

eallS for brief evaluation ef the faets and information

known tothe arresting. ofticers not only at the time of the

arrest, but, more erucially, ‘at the time of the search of

‘” etitioner’ s piekup truck. -

Petitioner has coneeded that in pursuing his piekup truck:

trom the sale barn the arresting officers Had probable cause

» believe Maat he had reeetved at. the sale barn a. cheek

ae pay able to ene. * Bob) Miller,” aitiply- identified as

the person who had made elaine to the proceeds realized

upon the salecaf hogs reasonably regarded by the.arresting

offieets as having pee n stolen. Before they Teft the sate

sharn in pursuit of Petitioner's pie kip true Kk, the officers

who ultiniate Iv etfeeted: his arrest had absolute Hy, no knowl

edge or inforniation suggesting that he had stelen the

hogs: They did* posstss information from whic h they rea-

sonably. could have inferred that Petitioner was Tinplicated

“in that theft, but only to the extent: of collecting {lie

proceeds: of the sale, either for himself) if-he,in fact Wis

the person who stole the hogs, or ins behalf of the actual

thieves.

Analytical clarity may he aided by ret fleeting upon what

result ration: ally would have followed ‘upon the trial if?

the evidence ‘arrayed against this Petiticuer were limited

to that obtained from his person as aresult. of a “skii

seareh’? at the Késciusko County jail: his would have

yielded the cheek reecived on the -day of the arrest from

the sale barn (the receipt of which by. Petitioner was

‘lready known to and formed a part of the probable ause = ¢

rehed' on by the arresting officers) and what is deseribed

ee ,

usu purchase me morandun,’? being thie aceounting vee

hile Supporting issuance Of the check, Without the sub-

Se quent warrantless seare ‘h of his pickup true I, the booklet ;

of blank bank cheeks would not, under tie liypothetieat,

circumstances offered for purposes -of iustration, hav¢

heen received in evidence, , ; ee ee /

- Tt is manifest that, withthe evidence thus limited, Dy-th-

tioner Buld not and would not have been convicted of the

erime of theft of the hogs. At best, he might have Kn CH ee

convicted of some. class of complicity or, depending pon

Whatever additional hypothetica assumptions are employed,

conspiracy ‘fo comunit the crime of theft. This observation

ait, onee wives “the lie to the confide “nt sae of, Peti-

lioner’s Fourth Ame nidinent argume nits ‘the Supreme

Court of Indiana, a ruling resting on heath seein

that receipt in evidence of the illegally searched out and

seized booklet of blank bank checks was ‘fharinless’’ or

render od ‘‘moot.?’. Of course it may be. true at the’ safne

time that the Supreme Court of indiana would hot have

treated the issue so cavalierly had ‘it not, simply erred in

ts’ “review of the record and found that. the challenged

exhibit. was not received in evidence when, as noted, it

obviously was. | | | es

Thus the eritical distinction between these facts and

‘those at issue in Chambers v. Marone yf: having obtained

asia result of their ‘skin search’? of Petitioner’s body

‘all the evidence they. had anvEbeedible cause to believe

that cither Petitioner or his vehicle contained, there simply

was no evidence or gontraband to be discovered by a search

° » : ‘ °

' Of Petitioner's pickap track that coabl, «thee Ge eee

Vention of @ warrant, te binges te the total q@teeteee of

* thy probable come the allierrs tel fer cee comet Mead

differently, tak the ollewrs set Genel eller Ue cfeee oe

the purchase siewgramdion, Setlt of wiki thee tated ore,

able camer te bediewe eure ip Mitiiteemer tT) ie)

the tire ties comeinwtied! o sdbiee <iet Ulm Gee ameitl

Domine <elllerwrme pemettaeliliy ccm ee cunt ¢ wcnrmeenntiiee

comtet of the Orvet cet seal) Gate ae Ghee crtiedie tures

A ee ee ee om th

ee OT tine Brew» eH

mee S ote erieeipel cli ib ceed? « te

Qtom—@i« (hd Rh. Vi a + aM o

owe tee tte cet ce reget le) cad oy 4

Com otatieedbcsteett: etter itty coddindh ~ sapgpeers

wert cenepeetetetiet: os am liver » “he

ramet tier PRS EEBIN Ee! ae th ;

33a) Gh orsatiae Te etTieaewt

oorenartt

ee ee

ees) = wereterit . eertasiteel

‘reat: «= ceed

Sabi ti {aies ft

ti by # Od

ayers

we eye

- Es -

Peerth Ameedment’s proscription of unreasonable _

ooretes, bet abe ceauthentieates the limiting proposition

‘het om bd martes roe gu we firthes

Vie -tulb aged nant eas, of course, Be Saree on

net atige: BF eee eel ere ms are met retrametively applied

aE eet Mee Oley ke pre digte the decision by the .

a a Pemrth: Anendinent

~~ ew ages Protea e Fe ’- + Mates (10-4), Un }

i ee ne. ee ee SSS and the pre-

ee ls Deted shetes (gd), ST UL 8. 1

(ite mse ~ eleewts thes there in Hpothing

wii ts tie geee HT cee Ree oe eee camp vert on the cases

wreedived: jacseer 4s Me diese ef On -Qulleeged werrh. fs. stom

Prt: « «amt «a @e tad a” ~wer bere: amd, a-

“ie Hinde eee — «2 oe a a eiton im

teat cee Go «tie cere thas Preston

ae te et * cugeesshle to.

The «=e tt & wiewe that “ev?

overctiitet 9 ie autememdnabe °°: trast

‘tts « Ste age pleew thet di--

“oe of aeeedeot 0@ «

et “Teh ae eepesmmedesd bey

Vera 8 -aageet cireuny-

ees er warrant

¢ = at <atiefs any of

Cite Foncth \metndnent

ter - arose De egahd not have

at se Se he eleers already had

jyttte f -oudtues "Rey hed any probable ,

‘“aUSe to he lieve were connee ted to the Petitioner. And, :

a titioner was incarcerated at the time of the seareh aa

his pickup {ruck was impounded, there could have been no

exigent cireumstances: justifying the search, ;

Wurrerone, Pe ‘titfonier respectfully prays that a Writ of

Certiorari issue fo review thes final judgment ef the Su-

prenge Court of the State of Indiana entered on August 12,

1971, and adhered to on October 29, 1974, and that upon

review Said jjmlgment be reversed and this cause be re-

manded to the Supreme Court of Indiana with instructions

that it reverse the judgment of the Starke ¢ ‘Trent Court

“and grant Petitioner’s Motion for a New Trial.

Respectfully submitted, -

; Jounx C. Crim, \

. Petitioner,

. : By: Mynon J. Tacx, m4 geet

609 Odd Fellows Building,

South Bend, Indiana,

: Counsel for Petitioner,

AL \ ’

APPENDIX. .

a Ss

(ani. M. PRANCESCHINS, Thropoue Lo Sexpan.

P.O. Box 498, - Attorney Gene ral of

First Merchants National Indiana, .

Bank Building, Wintiam, FL Tiiowrses,

Michigan City, Enelisna, - Assistant Atfornes, General,

Alorney for Appellant. 339 State House,

Indianapolis, Indiana, . F

Atlorneys for Appeller.

- .

In rae Scereme Cocrr or INDEANA,

Appellant,

a ( No. 269 S 42..

Stark or Ixprana. Cy

Appellee, |

APPEAL FROM. RHE STARKE CIRCUFT COURT,

Llonorable Marvin D. McLat GHUIN, Judge.

- Prentice, J. -- + ,

Defendant (Appellant) was convicted of the erime of

theff. The errors assigned on this appeal relate to the over:

ruling of the trial court of his motion to Suppress certaiay

evidence obtained from the person and vehiele ‘of Defend.

ant shortly after his arrest. The arre ~t Was made without

henefit of a warrant. It is the contemtinn of the defendant

that there was no probahle cause for the arrest and no

warrant to search the vehicle, which there was not. and that

conseque ntly the, evidence sought to be suppressed w as

padmissible, hhicetae heen obtaine d in violation of Article

I stl of the Constitution of Indiana and the Fourth

Ame neline mnt to the Constitution of the: United States,

The evidence im question consisted of a negotiable bank

cheek, 2 pure hase me smoraneduin: and ct booklet of blank bank

cheeks. ‘The first two items had been taken From tie person

of the defend: unt at the time he was searehed and jailed.

The last me ntione vel item had been taken from its concealed

position behind the back of the seat of the defentlant’s

vehicle, whieh he was driving at the time of hiscarrest. The

only probative value of these items was to identify the

defendant as the person who presented himself to the sales

barn manager on August Sth as Bob Miller and asked: for

and received: payment for the Bob Miller hoes. |

Fhe hogs had been stolen from their owner in Pulaski

County during the night or early mormng of Anenst ord

and 4th, 1967 and left unattended and unrecetpted for ina

pen at Claypool Sales Barn, in Kosciusko County, sone

tie between 6:0-p.m. on August 3rd and 8-000 acm. on

August 4th. State’s Exhibit ar ecard with the name ‘* Boh

Miller printed thereon, was found ow the pen by thé sales

barn emplovee at the time he diseévered the hegs.

‘The booklet of blank cheeks was never offered

dence, and thus no ‘question is presented with respect to it.

We have reviewed the evidenee adduced at, the hearing

on the motion to suppress, and while we are of the opinion

that it supported a valid arrest and search, in the interest

‘ of. conserving tinie and ‘effort we will not here rekite it.

The defendant was identified at the trial by personnel of

the sales barn as fhe same .person who had sold livestock

through the sales barn on two previous o¢easions and who

had‘appeared on August Sth‘and asked for and accepted a

check in payment for the Bob Miller hogs. This evidence

was uncontroverted. The evidence sought to be suppressed,

A® z

therefore, was merely enmulative, and the propricty of the

arrest and search rendered moot, , .

The admission‘of intproper evidence which tends only to

disclose a fact which is clearly proved by other legitimate’

ainl uncontroverted evidence is harniless error,

Davis v. State (1968), 251 Ind. 132, 239 N. i. 2d

GOL: 2 A ; , ~ ae

> -—

Peterson vy. State (1968), 250 Ind, 269, 224 N._K.

Yd 448; an ee

Jackson». State (1967). zis Ind. 579, 226 N. BE.

Yd 2; , wo a

Adams v. State (1946), 224 Ind. 472, 69 N. I. 2d

o Jupementr Arriem en,

Coneur. .

In THE Supreme Court or Inpiana,

Joun C. Crim, a/k/a Bos Munurr, )

~Defendant-Appellant,

vs. oe ae No. 369 S 42

*»

Sratk oF Lypiana,

Plaintiff-A ppellee.

“APPEAL PROM THE-STARKE CIRCUIT COURT,

Honorable Marvin. D. McLaucuuin, Judge.

PETITION FOR REHEARING.

Defendant-Appellant would respeetfully show to the

Court: - :

1. That he was’ convicted of the crime of theft in the

Starke Circuit Court on September 25, 1968. That there-

after he prayed an appeal to this Court, which ‘affirmed the

Judgment of conviction on August 12, 1971. That pending

said ‘appeal deféndant-appellant has been at liberty on

bond. ; | oe

2. That by reason thereof this Court has jurisdiction to

‘consider defendant-appellant’s Petition for Rehearing.

3. Defendant-appellant asserts that the opinion above

referred to contravenes Article 7, § 5, of the Indiana Con-

~~ stitution in the following particulars: —

A. That the opinion of this Court fails to give a state-

ei ment int writing of a substantial question arising

on the record, in particular, the facts surrounding

petitioner’s arrest in Fulton County by the Sheriff

_ of Kosciusko County for a misdemeanor observed

by said Sheriff committed in Fulton County. Evi-

dence of this fact was given by the Sheriff of

' Kosciusko, County, which appears at, Tr. pp. 91-

“opinion that it supported a valid arrest and search

mn the interest of conserving time and effort we’

will not here relate it’’. That such fact was the

AD.

139 (defendant-appellant’s Appeal Brief pp. 4-5).

This Court stated on this question, ‘*We have

reviewed the evidence adduced at\the hearing on

the motion to suppress, and while we are of the

basis for petitioner’s motion to suppress and reject

evidence, the overruling of which was the main

hasis of petitioner’s appeal, The opinion of the

Court fails to diseuss the authority of a ‘County

Sheriff to nmke ; an arrest without a warrant based

on the facts as revealed in the ree ord as alleged in

the foregoing paragraph.

The authority of a County Sheriff to make an

arrest .without warrant, thus,.establishing a firm

guideline from the Bar and the Courts to follow,

‘The opinion of this ( ‘ourt fails to disenss the legal

the arrest. to’ inform: defendant-appellant the

reason therefore, which failure by the arresting

officer contravenes a ruling precedent of. this

Court. (Plummer v. State, 135 Ind. 308, 34 N, E-

968 (1893).

4. The’ opinion of .this Court. in stating, ‘‘ Evidence

sought to be suppressed, therefore, was merely cumul

andthe propriety of the arrest and search rendered moot’,

is erroneous for the reason that this Court thereby

ative,

attempting to determine what evidence convinced the jury

of the guilt of the defendant-appellant beyond a re

asonable)

doubt, in contravention of ruling precedent -of this Court.

" Reid v. State. ceca

808 ;

1967, 231-N. E.

2d |

“effect of the f failure of the. Sheriff when - ‘making -

2 AO ;

: Broderick v. State, Ind. sexeidge woe N. boa

DAD 26, wonton ari denied 89 S. Ct. 164, SULS.

S72, 21L. Kd2d 141; |

Hardestu v. State, Ind. 1967, 251 Nob.

dd 510.

>. The Court da its opinion. failed to diseuss the’ Stata

“tory powers of { Uhe Sheriff and based on the facts revealed

by the reeord herein has ‘invaded the legislative: powers

_granted by the Indiana ¢ ‘onstifution to the Gener: i

“Assembly as expressed in Article 4, $2201), and Artie le *

$1, in that the opinion of this Court doés not discuss. the

~ jurisdiction and legislative authority of a County Sheriff

to arrest for -a misdemeanor beyond the confines of Ifis

bailiwiek. Ee es .- ee

Worrrerone, petitioner prays that he be granted a rehear-

ing ita reconsideration of his appeal.

‘ : s- Cant M. FRANCESCHIN},

mae, * Carl M. Franecesehin,

October, 1971. ,

. <s Doxatp Th He sree,

~ Donald H. Hunter,

: <i Acting ( hich Tapstice.

a to

Attorney for Defendant Appellant,

Petition for Rehearing is hereby denied thts 29th day of

”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.