Petition for Writ of Certiorari — Walker v. Indiana

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LIBRARY | FILE

SUPREME COURT, U- S

no. @3- 823

MICHAEL RODAK, JR.,

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973 :

JAMES F. WALKER, s

Petitioner

Vs.

STATE OF INDIANA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

Of Counsel: Counsel for Petitioner:

Ralph R. Blume Donald D. Doxsee

Stanley A. Levine 323 West Berry Street

344 Utility Bldg. Fort Wayne, Indiana 46802

Fort Wayne, Ind. Phone:

46802 219-4223436

November, 1973

STH PZ ES A ER 7’ r St ad I sa OTS gE

INDEX

Gpimieoms Belew . . «+ 2+ © © © 2

eo 6 6 wwe ee ee

Question Presented ........

Constitutional Provisions Involved

Statement of the Facts ......

Federal Question Raised in

ne «ss we * + ee e+

Reasons for Granting Writ. ....

+ - oe & « »« ¢ © « « «

Appendix A - Opinion of the Court

ems « «+ 6+ « 6 «© & © @

Appendix B - Petition for

Re-Hearing. . a a ae

Denial of Petition for

Ce . « « « « + #* « * «6

Appendix C - Petition for Transfer

to Indiana Supreme Court. ...

Denial of Petition for Transfer

Appendix D - Sentence of Trial

Court a. s s* oe o 7. - +. _ _ _ 7 .

Motion to Correct Errors. ...

AUTHORITIES

Cases:

Chimel v. California (1969) 395

U.S. 752, 23 L.Ed.2d 685,

on a Ps + » « « « * # @

PEAT Ee AA

Coolidge v. New Hampshire (1971)

U.S. , 29 L.Ed.2d 564,

583, 91 S.€s- > © - . e e e 7x 8

Constitutional Provisions:

Fourth Amendment

Fourteenth Amendment

Statutes:

- oe 2 oe eee

POTS GEM AEN ite ORD

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

JAMES F. WALKER,

Petitioner

vs.

STATE OF INDIANA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

The petitioner, JAMES F. WALKER, prays

that a Writ of Certiorari issue to review

the opinion and judgment of the Indiana

Court of Appeals rendered in the proceed-

ings on March 7, 1973. A timely petition

for re-hearing was denied on May 8, 1973,

and a timely petition for transfer to the

Supreme Court of Indiana was denied without

opinion on August 30, 1973.

OPINIONS BELOW

The opinion of the Indiana Court of

Appeals (Appendix A, pp. A-2 to A-22) was

rendered on March 7, 1973, and is reported

in _ Ind. App. , 293 N.E.2d 35. The

petition for re-hearing (Appendix B, pp. B-l

to B-6) was denied without opinion (Appen-

dix B, p. B-7) on May 8, 1973. The petition

for transfer to the Supreme Court of Indiana

(Appendix C, pp. C-l to C-3) was denied

without opinion (Appendix C, p. C-4) on

C0 petit CEPR OMEN EE

AUP etiataal ie

OO Rl Cue Aa NAR

August 30, 1973, and is not yet reported.

JURISDICTION

The order or judgment of the Indiana

Court of Appeals was rendered on March 7,

1973. A timely petition for re-hearing

was filed and denied on May 8, 1973. A

timely petition for transfer to the Supreme

Court of Indiana was filed and denied with-

out opinion on August 30, 1973. This

petition is filed less than 90 days from

date of the Supreme Court of Indiana's

denial of transfer. The jurisdiction Qf

this Court is invoked under 28 U.S.C. $057(3).

QUESTION PRESENTED

The petitioner was arrested without

a warrant on a charge of professional

gambling. The evidence against the

petitioner was secured by means of a search

of the person of the petitioner and of the

premises occupied by him. A search warrant

for the premises has been suppressed by

the trial court as invalid.

The question presented then is

whether the evidence secured against the

petitioner by means of a warrantless

search and seizure was valid as being a

necessary incident of an arrest.

Pe ee a PD em ee

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the following con-

stitutional provisions:

(1) The Fourth Amendment to the Con-

stitution of the United States, which pro-

vides as follows:

"The right of the people to be

secure in their persons, houses,

papers, and effects against un-

reasonable searches and seizures,

shall not be violated..."

(2) The Fourteenth Amendment to the

Constitution of the United States, which

provides as follows:

"All persons born or naturalized

in the United States and subject

to the jurisdiction thereof, are

citizens of the United States and

of the state wherein they reside.

No state shall make or enforce any

law which shall abridge the privileges

or immunities of citizens of the

United States nor shall any state

deprive any person of life, liberty,

@ property, without due process of

law; nor deny to any person within

its jurisdiction the equal protection

of the laws."

STATEMENT OF THE FACTS

On April 5, 1971, several Fort Wayne

City Police officers possessing arrest

warrants for two men other than the peti-

tioner went to Stewart's Smoke Shop. On

arrival they arrested one of the men for

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; FS ESR OE SEES RE SP , 3 SN

BP RE BRI OP

whom they had an arrest warrant. They

read the arrested person a search warrant

which was later quashed and the evidence

suppressed. The officers had earlier

observed the other person for whom they

had a warrant enter a separate part of

the building occupied by Stewart's Smoke

Shop which had its own outside entrance.

The person already arrested gave the

officers a key to it.

The officers left the Smoke Shop and

went to the other place and tried the key

which did not work. The officers then

knocked on the door which was opened by the

other person for whom they had an arrest

Warrant. He stepped back and the officers

entered the premises. There was a partitition

to block the view of people who stepped in.

The officers, however, walked past the parti-

tion and observed the petitioner sitting at

a table on which there was an adding

machine, money and numbers slips, at which

time the petitioner was arrested on a

charge of professional gambling and

searched. The search of the petitioner's

person revealed $250.00, some odd change

and two numbers slips, along with some

miscellaneous items. While the evidence

of the items on the table and on the peti-

tioner's person was suppressed as to the

invalid search warrant, they were wrongfully

admitted into evidence as incident to the

petitioner's arrest.

At no time did the petitioner or

anyone else give any indication that they

had weapons, were going to flee the scene

or make any effort to destroy the evidence.

“a

3 ™ yee 5 eRe .

FEDERAL QUESTION RAISED IN STATE COURT

In the Circuit Court of Allen County :

At the trial of this cause the federal

question raised by this petition was raised

by objections to direct testimony, introduc-

tion of evidence and in the Motion to Correct

Errors. The objection to the testimony and

the evidence were specially made on the

basis of the Fourth Amendment to the United

States Constitution and a citation of the

case of Chimel v. California (1969) 89 S.Ct.

2034, 295 U.S.752. The issue was preserved

On appeal by the Motion to Correct Errors.

(Appendix D, pp. D-2 to D-5)

In the Indiana Court of Appeals: The

question was preserved on appeal by filing

the above-mentioned Motion to Correct Errors

in the Indiana Court of Appeals and argument

in the briefs filed with the Court. The

matter was further preserved in the petition

for re-hearing. (Appendix B, pp. B-l to B-6)

In the Supreme Court of Indiana: The

federal question was preserved in the peti-

tioner's petition to the Supreme Court of

Indiana to accept transfer of the case.

(Appendix C, pp. C-1l to C-3)

REASONS FOR GRANTING WRIT

The court below has decided a Federal

question of substance in a way probably not

in accord with applicable decisions of this

Court. The question involved is whether

the search in April, 1971. of a room and

person, both out of the view of police

officers when they arrested another person

some ten (10) feet away at the entrance of

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PEPER RGIS NBR Ge Itt

the same store building, was a permissible

search under the Fourth Amendment in the

light of this Court's holding in Chimel v.

California (1969) 395 U.S. 752, 23 L.Ed.2d

~_ -- —_——

685, 89 S. Ct. 2034.

The search was conducted apparently

subsequent to the warrant arrest of one

James Bates at a storeroom entrance. There

were no weapons and there was no destructible

evidence in view at the time of the arrest or

shortly thereafter. There was no cause for

the arresting officers to believe they were

in danger, that destructible evidence could

be secreted or destroyed or that the

arrested person would make any effort

whatsoever to flee or otherwise avoid arrest.

At the time of the search and arrest the

police officers had an invalid search

warrant for the premises where the arrest

was made.

The Court of Appeals of Indiana in

sustaining the trial court's admission into

evidence of the money, "numbers slips" and

other physical items found in the area behind

a partition and some ten (10) feet from the

arrested person's area of physical control,

cites at length from Chimel v. California,

supra, at pages 41 and 42 as follows:

"When an arrest is made, it

is reasonable for the arresting

officer to search the person

arrested in order to remove any

weapons that the latter might seek

to use in order to resist arrest

or effect his escape. Otherwise,

the officer's safety might well be

endangered, and the arrest itself

frustrated. In addition, it is

~~ i ~

et Rei a Pare ses PUNE E RAT RRS TAR EEE .

ithe Be gene» |

entirely reasonable for the arresting

officer to search for and seize any

evidence on the arrestee's person in

order to prevent its concealment or

destruction. And the area into which

an arrestee might reach in order to

grab a weapon or evidentiary items

must, of course, be governed by a

like rule. A gun on a table or in

a drawer in front of one who is

arrested can be as dangerous to the

arresting officer as one concealed in

the clothing of the person arrested.

There is ample justification, therefore,

for a search of the arrestee's person

and the area ‘within his immediate

control'--construing that phrase to

reach the area from within which he

might gain possession of a weapon

or destructible evidence."

However, the Indiana Court appears

sxtent than permitted by a reasonable

interpretation of that cited portion of

-himel, in that the Indiana Court would

ermit a warrantless search for destructible

svidence at any time an arrest is made and

in any part of the area where it is made

sven though there is no probable cause for

such a search and even though it goes

yeyond an appropriately limited search of

she arrestee.

The situation presented in this case

.s Closely analogous to the hypothetical

statement of facts set forth in footnote

3 in this Court's opinion in Coolidge v.

lew Hampshire (1971) | U.S. __, -29

1.Ed.2d 564, 583, 91 S.Ct. , wherein

this Court notes: teas

entirely reasonable for the arresting '

officer to search for and seize any. )

evidence on the arrestee's person in i

order to prevent its concealment or

destruction. And the area into which

an arrestee might reach in order to

grab a weapon or evidentiary items

must, of course, be governed by a

like rule. A gun on a table or in

a drawer in front of one who is

arrested can be as dangerous to the

arresting officer as one concealed in

the clothing of the person arrested.

There is ample justification, therefore,

for a search of the arrestee's person

and the area ‘within his immediate

control'--construing that phrase to

reach the area from within which he

might gain possession of a weapon

or destructible evidence.”

However, the Indiana Court appears

to have applied this holding to a greater

extent than permitted by a reasonable

interpretation of that cited portion of

Chimel, in that the Indiana Court would

permit a warrantless search for destructible

evidence at any time an arrest is made and

in any part of the area where it is made

even though there is no probable cause for

such a search and even though it goes

beyond an appropriately limited search of

the arrestee.

The situation presented in this case

is closely analogous to the hypothetical

statement of facts set forth in footnote

23 in this Court's opinion in Coolidge v.

New Hampshire (1971) _— U.S. __, 29

L.Ed.2d 564, 583, 91 S.Ct. , wherein

this Court notes: rage

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SS Seino cana tarp re ee eee

- - « Where, however, the

arresting officer inadvertently

comes within plain view of a

piece of evidence, not concealed,

although outside of the area under

the immediate control of the arrestee,

the officer may seize it, so long as

the plain view was obtained in the

course of an appropriately limited

search of the arrestee. (Emphasis

added.)

In the instant case one of the basic

errors of the arresting officers was to

obtain their "plain view" of the evidence

when they went beyond the limits of the

arrestee's person and some ten (10) feet

beyond his reach, at a time when they had

no cause to look for weapons or destructible

evidence, and when they were also operating

pursuant to an invalid search warrant.

The existence of the search warrant,

albeit unlawful, eliminates any argument

of the State of Indiana that the search

was inadvertent. The warrant for the

search involved the very items of evidence

that were found in the store building and

on the person of the man arrested without

a warrant.

The other limit on the plain view

doctrine is that a warrantless search is

never constitutionally permissible in the

absence of "exigent circumstances". Coolidge

v. New Hampshire, supra, at 29 L.Ed.2d 584,

In the instant case the evidence is clear

that the police officers had ample opportunity

to obtain a search warrant because they had,

in fact, obtained one several days before.

Prior to the trial it was held invalid as

being based on “stale facts".

ae ne eer cmp nengen ene Teme

In effect this case represents a

clearly maneuvered “plain view" of the evidence

' sought and obtained by the police and later

introduced into evidence against your

+ petitioner.

It is submitted that the admission of

| this evidence over the objection of counsel,

_ as being in "plain view", and within the

- permissible scope of a search incident to

an arrest, is crucial and prejudicial to

_ petitioner, in that the objects admitted

_ into evidence over objections were the

only probative evidence introduced against

the defendant and is the only evidence upon

which the conviction could be based.

CONCLUSION

For the foregoing reasons, this

Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

Attorney fof Petitioner

November 23, 1973

(iiss

ION ROT er ty AS eR:

AC Yn nan

Denne

STATE OF INDIANA

CLERK OF THE SUPREME COURT

AND COURT OF APPEALS

’ BILLIE R. MCCULLOUGH, CLERK

217 STATE HOUSE

INDIANAPOLIS, INDIANA 46204

TELEPHONE 633-5200

NO. 3-972A62

James F. Walker V. State of Indiana

You are hereby notified that the Indiana

Court of Appeals has on this day issued

the enclosed Opinion.

Please acknowledge receipt of this

notice in order that our records

may show that you have been notified

of this action.

WITNESS my name and the seal of

said Court, this 7th day of March, 1973.

(SEAL)

s/ Billie R. McCullough

Clerk Supreme Court an

Court of Appeals

IN THE

COURT OF APPEALS OF INDIANA

THIRD DISTRICT

JAMES F. WALKER

Appellant (Defendant

Below)

STATE OF INDIANA

Appellee (Plaintiff

)

Vv. ) No. 3-972 A 62

)

Below) )

APPEAL FROM THE ALLEN CIRCUIT

COURT, HON. JACK P. DUNTEN,

SPECIAL JUDGE

SHARP, J.

In this case the Appellant, James F.

Walker, was chrged by way of affidavit of

the offense of professional gambling under

-C. 1971, 35-25-1-2, Ind. Ann. Stat.

10-2330 (Burns 1972). The Appellant

explicitly waived a trial by jury and this

case was tried before the trial court alone.

The Appellant was found guilty by the trial

court and sentenced to the Indiana State

Farm for a period of six months and assessed

a fine in the sum of $500.00. Motion to

Correct Errors was duly filed and overruled

resulting in this appeal.

Examining the factual record with the

inferences most favorable to the State it

is disclosed that on April 5, 1971 three

members of the Fort Wayne Police Department

along with a member of the Indiana State

Police went to 1233 South Lafayette Street

irryeicersmercessenes

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' in Fort Wayne, Indiana to execute two arrest

| warrants for Robert L. Stewart and James

' Bates, Sr. The arrest warrants were in

_ reference to the offense of professional

' gambling. These police officers arrived

at the above address at approximately

1:00 o'clock P.M. The building at this

_ address faces Lafayette Street with a door

to the south portion on the north end of

_ the building and a door to a storeroom or

a utility room on the south end of the

_ building. The building is used as a

_ cigarette and cigar store with the business

name of Stewart's Smoke Shop. When the

police arrived at Stewart's Smoke Shop

they knew that James Bates, Sr. was in

the south portion of the building and

that Robert Stewart was in the store

portion of the building. The police

officers entered the store building

portion of the Smoke Shop building first.

They advised Robert L. Stewart that they

had a warrant for his arrest, read the

warrant to him, advised him of his rights,

and asked him for a key to the south

portion of the Smoke Shop. Robert L.

Stewart was the operator of the business

and the owner of the real estate upon

which the Smoke Shop was situated.

One detective then stayed with Stewart

while two other detectives went to the

south Door of the Smoke Shop. At this

point it is necessary and desirable to

consider the precise testimony of officer

Lloyd Ellis:

"Q And then, as I understand

your testimony, you asked

him for a key. Now, what

was this key for?

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Well, this key would be for

the room that we seen Mr.

Bates earlier go into this

room.

How long prior to your

arrival had you seen Mr.

Bates go into this room,

if you can recall?

We went there earlier and we

were hoping that there would

be more people in there, and

we had seen Mr. Bates, he was

the only one we knew definitely

was there, and it was about

fifteen or twenty minutes prior

before that he arrived, that

he went into this back room

there.

All right, you asked Mr.

Stewart, as I understand it,

for the key to this other room,

is that correct?

Yes.

Did he give it to you?

Yes, he gave me a key.

Then what, if anything, did

you do?

I left Detective Platt there

with Mr. Stewart and myself

and Detective Snyder went

out the door, the Smoke Shop,

and went approximately twenty

feet to the other door, and

I tried the key and it unlocked,

OR OSS ; r nS PEST WETIE LY , RO PRI ED

Baad vata Ty wed se Ss aS

but there was evidently another

lock on the inside that had

to be unlocked. So I knocked |

on the door, and after this Mr.

Bates came to the door, opened

the door and stepped back and

I stepped in.

zs eke

Was there any conversation that

occurred at that time?

I think I just said to him,

‘James Bates,' and he just

kind of nodded, and as he did

he stepped back into the back

part.

He stepped back away from you

when he saw you?

Yes, it would be about three

steps, as I recall. There's

a partition, sort of like a

wind-break, as you open the

door so that you can't see

into the building. You've

got to walk in about two steps

and then turn about a step or

two steps and you're behind

that partition. He stepped

back toward, back by the

partition.

What, if anything, did you do

at that time?

I stepped back with him.

And what, if anything, did you

observe at that time?

Well, as soon as I stepped back

past this partition, wind-break,

or whatever you want to call it,

I observed the defendant Mr.

Walker sitting at a table with

the adding machine and the

number slips, and...

eek

Detective Ellis, with regard

to number slips, can you tell

the court what you mean by

number slips?

Well, number slips are any

type of paper or a slip of

paper, it can be any form,

with a combination of three

numbers crossed, or they can

be boxed or squared, with a

dash on them, there will be

a figure such as a $1.50, and

these are bets that are made

on the stock market quotations,

advances, declines and unchanged

for the day. And also you will

have a number or code number for

the writer who will be on this

slip and initials of the person

purchasing this slip, and down

at the bottom will be the total

amount bet on the slip; there

will be a date on this slip.

These are slips that are used

in the numbers.

You mean the people purchase

these slips with a number on

them for money?

Right.

Ser ARTs

: Tbe Fa

And this is wagering, correct?

Yes, wagering.

Q All right, now. prior to April 5,

1971, had you occasion to see

or personally examine number slips,

were you familiar with them, in

other words?

A Yes, we have made purchases on

these number slips.

Q And, as a matter of fact, prior

to April 5, 1971, had you been

engaged in investigation of the

numbers racket? ;

A Yes, sir.

In the course of that investiga- ;

tion, did you have occasion to

see or familiarize yourself

with number slips?

A Yes, sir.

Q And the numbers game as it was

played at that particular time?

EEE I EO ee IEE r

A Yes, sir.

Q And are you telling the court,

from your experience, that the

slips that you observed on the

table in the premises at 1233

South Lafayette Street were, in

your opinion, number slips?

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PE RADON Re ENE PB LO

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“

A Yes, sir, they were number slips.

Q All right, would you continue,

please, then, to relate to the

court what you observed on your

entry into this side room?

A Well, as I came around the side

there, I looked over, I looked

around the whole room and as I

looked over, I saw only one

other person there in this

back room who was James Walker,

and there was two round tables

sitting side by side and these

slips were stacked in different

stacks and they had an adding :

machine tape on with a total, :

and they were stapled together -

the slips were stapled. There

was stacks of money that had

been stacked into piles, and

there was some change there, I

believe, and an adding machine

and some scratch paids (sic)

with figures on the table.

These were sitting directly

in front of where Mr. Walker

was sitting.

> 29

Ft oe eet Be

Q Now, as I understand it, he

was seated at one of these

round tables?

A Yes,sir.

Q And what, if anything, did

he do upon your entry into

the room?

‘ A-8 ;

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A Nothing. He just leaned

back in his chair and sat

there.

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Q And before you entered this

room and observed the defen-

dant and the money and number

slips on the table, as you

have testified, did you con-

duct any search of that room?

A Of the back room?

Q Yes. é

A No, I hadn't conducted any

search until after I placed

Mr. Bates under arrest, read

the warrant to him and advised

Mr. Walker he was under arrest

on a preliminary charge of

professional gambling. I

searched both subjects.

Q Did you have to move anything

or uncover anything to see

these number slips, money,

adding machine or the defendant?

A No, before we picked anything

up or moved anything, we called

for a photographer and had him

photograph it just as we found

it when we walked in.

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Q All right, now you've stated

that you placed Mr. Walker

under arrest at that time

for a preliminary charge of

| a9 :

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BONEN PRE AT NG ABIDE A

professional gambling, is that

correct?

A That's right.

Q What, if anything, did you do

at that time?

A Well, I searched the subject.

Q What, if anything, did you find?

A I found in his pockets, his

pants pocket, I found $250

and some odd change and two

slips that I identified myself

as being number slips and some

other personal papers, car

registration and some odds and

ends that were in his jacket,

and things like this."

On cross-examination by the 3

Appellant's counsel, Officer Ellis testified, ‘

in part, as follows: ey

Q Officer, when you first

entered the building, would

you be able to observe these e

two tables and the objects

shown here by looking through

the front door?

A From outside, standing on the

sidewalk?

Without going inside the room?

A No, you would have to...

You couldn't see it standing

in the doorway. This wall here,

that you see here, where these ;

two tables are against it, :

is a thin partition, and the

' |

doorway is about two foot,

and you have to step over and

then up, and this is where Mr.

Bates stepped. He reached .

around this corner and unlocked

this door, and I stepped up here

to come up where he was stand-

ing and then I look over to

the side and there was these

two tables (referring to States's

Exhibit No. 1).

But you have to walk inside the

building to get the view of

these tables, is that right?

Yes, you have to go inside the

building approximately two foot.

‘a

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‘4

¥,

So that simply a plain glance

through the door would not re-

veal those tables?

No, you couldn't see them from

standing in the doorway. :

Now, where was Mr. Bates in

relation to those tables when

you first observed him?

When I first observed Mr. Bates,

he came around that corner of

that partition, reached over,

unlocked the door, and there is

a small step about the size of

this (indicating) to step up

and, say, like the door was

here. He unlocked it and I

stepped around about this

far (indicating) and he backed

up -- he backed up past that

partition and I backed up to

him, and there would be the

A-11 ;

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tables. He was standing right

at the edge of the table, .

actually, off to the side.

Q All right, did Mr. Bates do

or say anything to you at that

time?

A No he didn't say anything. I

just told him I had a warrant

for his arrest, and as I come

up to read it to him, all I Had

to do was turn over to the side

and there was the two tables

sitting there."

The trial court also had before it

photographs to supplement the oral testimony fe

of the police officers in addition to the 4

evidence introduced from the person of the

Appellant and from the tops of the two

tables in question. From the evidence

it is clearly inferable that the so-called

"windbreak" in the partition in question

formed an entryway into and was a part of

the room in which Bates and the Appellant

were located at the time of their arrests.

It is also clearly inferable that all of

the events which transpired after the entry

of the two police officers with the arrest

warrant for Bates occurred inside the same

room. When Bates and the police took two

steps from the entryway they did not enter

a different room but only completed their

entry into the same room. On this question

the trial court had a choice between the

testimony of the police officers and of

Bates. The evidence clearly infers that

we are here concerned with one room not two.

The only evidence in any way contrary to the

testimony of the police officers was given

on behalf of the Appellant by said James

Bates, Sr. whose credibility was challenged

by impeaching evidence.

A-12

————=—

EYP LEE BD DELLE ND

SP ee at) Gna ate Wdt¢

In order to determine this appeal

we must consider the following issués:

1. Whether some of the items of

evidence introduced were incident to a

legal arrest and whether they were in

plain view of the arresting officer

when he arrested the Appellant without

a warrant.

2. Whether there was probable

cause to arrest the Appellant for the

offense of professional gambling without

an arrest warrant.

3. Whether the items taken from the

person of the Appellant constituted a

search of his person incident to a valid

arrest.

4. Whether all of the evidence

presented was sufficient to sustain a con-

viction of guilty of professional gambling.

For our purposes here we will assume

that the arrest warrant for Bates was a

valid one and was sufficient to authorize

the presence of the two police officers

in this particular room at this particular

time for the purpose of properly executing

such arrest warrant. I.C. 1971, 35-1-19-6,

Ind. Ann. Stat. 8 9-1009 (Burns 1972),

provides as follows:

"To make an arrest in criminal

actions the officer may break open

any outer or inner door or window

of a dwelling house or any other

building or inclosure to execute

the warrant, if, after notice of

his authority and purpose, he be

refused admittance."

A-13

In McGregor v. State, 200 Ind. 496,

163 N.E. 596 (1928), the police officers

had gone into a public store maintained

by the defendant to apprehend a law violator

and finding the door of an adjoining room

open were authorized to enter to make an

arrest and if necessary, could have broken

open the door.

Even under the testimony offered by

Bates under the above statutory and case

authorities the police officers were properly

in the room with Bates and the Appellant

for the purpose of executing a valid arrest

warrant.

We must next turn to the question of

probable cause for the arrest of the

Appellant on the charge of professional

gambling without a warrant. At the time

of the arrest of Bates pursuant to a valid

arrest warrant, in the sam: room, in plain

view of the arrestinc officer was the

Appellant sitting in front of two tables.

The photographs of these two tables as

they appeared at that time were placed into

evidence. We have carefully examined these

photographs in the transcript. On these

tables were an electric adding machine

plugged into an electric wall socket, on

the table by the adding machine were piles

of so-called "number Slips". There were

adding machine tapes stapled to the stacks

of number slips, and there were stacks of

currency and some small change. There

were also scratch pads with figures and

several ball point pens, ashtrays and

matches. All of these were directly in

front of the Appellant as he sat facing

these items on these two small round tables

Which had been pushed together. These

number slips were introduced into evidence

and had been carefully examined by this

court.

A-14

ann ae he Se TEN ORE EN TRB TREY YOU

In Smith v. State, Ind. °

271 N.E. 2d 133, 136 (1971), our Supreme

Court stated: :

"The test for probable cause

to make an arrest is whether at

the time of the arrest the facts

and circumstances within the know-

ledge of the officers and of which

they had reasonably trustworthy

information were sufficient to

warrant a prudent man of reasonable

caution in believing that the

arrestee had committed or was

committing an offense." (citing

numerous authorities)

In this case the police officers had

information that a numbers gambling activity

was operating out of the premises of

Stewart's Smoke Shop, that Bates, for whom

an arrest warrant had been issued, was a

known gambler, there were number slips and

currency in piles with adding machine

totals connected with the piles, an

electric adding machine in use in close

proximity to this Appellant at the precise

time of his arrest. Certainly under all

of these circumstances there was probable

cause for the arrest of the Appellant.

Having concludec that there was sufficient

probable cause for his arrest we must next

determine whether or not the items of

evidence in plain view on the two tables

in question which were immediately in front

of the Appellant and the items taken from

his person at that time by the arresting :

police officers were proberly (sic) admitted E

;

Oe _

into evidence.

A-15

In Harris v. United States, 390 U.S.

234, 236 (1968), an unanimous Supreme Court

of the United States, with one justice not

‘participating and with Justice Douglas

concurring separately, stated:

“Once the door had lawfully

been opened, the registration card,

with the name of the robbery victim

on it, was plainly visible. It

has long been settled that objects

falling in the plain view of an

officer who has a right to be in

the position to have that view are

subject to seizure and may be

introduced in evidence. Ker v.

California, 374 U.S. 23, 42-43 (1963);

United States v. Lee, 274 U.S. 559

(1927); Hester v. United States,

265 U.S. 57 (1924)."

Our Supreme Court followed Harris in

Alcorn v. State, Ind. , 265 N.E. 2d

413, 416 (1970), where it said:

"The word ‘search' connotes

uncovering that which is hidden,

prying into hidden places for that

which is concealed. It is not a

search to observe what is open to

view."