Petition for Writ of Certiorari — Frasier v. Indiana

LIBRARY, “= —

SUPREME COURT, U. B ;

t

| NOV 2 IST

IN THE SUPREME COURT OF THE — Sr arEs

OCTOBER TERM, 1974.

_£9 -

No. (i , —L tad bay

EDDIE LEE FRASIER.

)

)

Petitioner. )

)

-Vs- )

)

STATE OF INDIANA, )

)

Respondent. )

N W E RI TO THE SUPREME

COURT OF INDIANA

FERD SAMPER, JR.

703 First Federal Bldg.

Indianapolis, Indiana 46204

JAMES H. VOYLES, JR.

1500 Consolidated Bldg.

115 North Pennsylvania Street

Indianapolis, Indiana 46204

ATTORNEYS FOR PETITIONER

PET

GRANT HAWKINS

703 First Federal Bldg.

Indianapolis, Indiana 46204

Opinion Below. .

Jurisdiction . .

Question Presented .....

Constitutional Provisions ..

Statement of the Case ....

Argument. ...

Conclusion...

Appendix "A". ..

Appendix "B" ..

e e @o e e e

TABLE OF CASES

Burton v. State,

680, 142 N.E.

Carroll v. U.S.,

45 S.Ct. 280

Chambers v. Maroney,

U.S.

2d 419

42, 90 S.Ct.

apman Vv.

Chap Caz i fornia, (1967)

U.S. ° S.Ct.

24, 17 L.Ed.

2d 705

Chimel v. California, (1969) 395 U.S.

/

’

-Ct.

(1957) 236 Ind...

(1925) 267 U.S.

(1970) 399. .

974, 26 L.Ed.

, 23 L.Ed.

2d 685

Page

20

132,.22

36

34

&

22

OAL, 8

Page

Crume v. Beto, 383 F.2d 36, 39. ... 39

(CA 5 1967), cert denied, 395 U.S. 964, ;

89 S.Ct. 2106, 23 L.Ed. 2d 749 (1969)

Foster v. California, 394 U.S. 440, 443 .39

89 S.Ct. 1127, 22 L.Ed. 2a 402 (1969)

Frasier v. State, (1974) 312 N.E. ... 20

24. 77, 79-80

Gilbert v. California, 388 U.S. 2) ae

87 S.Ct. 1926 (1967)

Gustafson v. Florida,(1973) 42 L.W. .. 19, 21,

U.S. , 94 S.Ct. 488, 38 23, 24,

L.Ed. 2d 456 30'& 35

Harrington v. California, (1969) .... 36

395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.

2d 284

Ma v. Ohio,(1961) 367 U.S. 643 . ... 18

81 S.Ct. 1684, 6 L.Ed. 2d 1081

People v. Marsh, 20 N.Y. 2d 98, 101 .. 28

281 N.Y.S. 2d 789, 228 N.E. 24a 783,

786 (1967)

People v. Superior Court of Yolo Co. .. 29

[Kiefer] 3 Cat. 3d 807, 91 Cal. Rptr.

729, 744, 478 P.2d 449, 464 (1970) (en banc)

Rudd v. Florida, (CA5 1973) 477 F.2d ... 40

805

Sisk v. State, (1953) 232 Ind. ..... 20

214, 110 N.E. 2d 627

Stovall v. Denno, 388 U.S. 293, 875 .. 43

Ct. 1967, 18 L.Ed. 1199 (1567)

ii

ERO;

ALO LO SAPP S So

_IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

NO.

EDDIE LEE FRASIER,

Petitirner.

STATE OF INDIANA,

ee ee ee ee eee ee ee ee

Respondent.

‘PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF INDIANA

Eddie Lee Frasier, by his attorneys

Ferd Samper, Jr., and James H. Voyles, Jr.,

prays tHat a writ of certiorari issue to

review the judgment of the Supreme

Court of Indiana in ‘affirming the judgment

of the Marion County Criminal Court,

Division Four, , Indianapolis, Indiana,

upon his conviction of armed robbery in

violation of Burns Indiana Statute Annot.,

§10-4709; IC 35-12-1-1.

OPINION OF THE SUPREME COURT OF INDIANA

The opinion of the Supreme Court

of Indiana has been officially reported,

and is cited in 312 N.E. 2d 77, 42 Ind.

Dec. 167. A copy is reproduced herein

as Appendix "A" to this petition.

JURISDICTION

1. The judgment of the Supreme

Court of Indiana was entered on June 4,

1974.

2. A timely Petition for Rehearing

was filed with the Clerk of the Supreme

Court of Indiana on June 21, 1974. The

petition for rehearing was denied on

August 5, 1974. A copy is reproduced

herein as Appendix "B."

ss The jurisdiction of this |

Court is invoked under the provisions of

Title 28, United States Code, §1257 (3).

oa

FARTS Ty

QUESTIONS PRESENTED

1. Were rights of the defendant

under the Fourth, Fifth and Fourteenth

Amendments to the Constitution of the

United States violated when the trial

court allowed into evidence, over the

objection of the defendant, the fruits

of a warrantless search and seizure made

without probable cause, subsequent to a

non-custodial arrest and testimony as to

the occurrences sequential to that illegal

search and seizure?

2. Were rights under the Fifth,

Sixth and Fourteenth Amendments to the

Consvitution of the United States violated

when witnesses were allowed to testify,

Over the objection of the defendant, to

the product of an unduly Suggestive police-

conducted "show-up"?

3. Were rights under the Fifth,

Sixth and Fourteenth Amendments to the

Constitution of the United States violated

when a motion for a mistrial was denied

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subsequent to the iscovery that the

bailiff of the trial court had made

comments to the jury during its de-

liberation, and those comments were

made out of the presence of the

petitioner and his counsel and said

comments were not only incorrect as

to the law stated therein, but highly

prejudicial to the defendant?

CONSTITUTIONAL PROVISIONS

Fourth Amendment to the Constitution

of the United States reads as follows:

"Unreasonable searches and

seizures.--The right of the people

to be secure in their persons,

houses, papers, and effects, against

unreasonable searches and seizures,

shall not be violated, and no

warrants shall issue, but upon

probable cause, supported by oath

or affirmation, and particularly

describing the place to be searched,

and the persons or things to be

seized.”

Fifth Amendment to the Constitution

of the United States Reads as follows:

“Criminal actions-Provisions

concerning-Due process of law and

just compensation clauses.--No person

Shall be held to answer for a

capital, or otherwise infamous

crime, unless on a presentment or

indictment by a grand jury, except

in cases arising in the land or

naval forces, or in the militia,

when in actual service in time of

war or public danger; nor shall any

person be subject for the same offense

to be twice put in jeopardy of life

or limb; nor shall be compelled in

any criminal case to be a witness

against himself; nor be deprived of

life, liberty, or property, without

due process of law; nor shall

private property be taken for public

use, without just compensation."

Sixth Amendment to the Constitution

of the United States reads as follows:

"Rights of the accused.--In all

criminal prosecutions, the accused

shall enjoy the right to a speedy

and public trial, by an impartial

jury of the state and district

wherein the crime shall have been

committed, which district shall

have been previously ascertained by

law, and to be informed of the nature

and cause of the accusation; to be

confronted with the witnesses against

him; to have compulsory process for

obtaining witnesses in favor, and

to have the assistance of counsel

for his defense."

OLED Mi Lg. AEN BMW RE I Rhee AP intl RGA NE Aa

Section 1 of Amendment 14 to the

Constitution of the United States reads

as follows:

“Citizenship--Due process of law--

Equal protection.--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, or property,

without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws."

STATEMENT OF THE CASE

On the night of August 28, 1972,

two men with guns robbed Mr. and Mrs.

Larry Bosley in the Bosleys' apartment

(Tr. p. 278). Moments after the robbery

and in the neighborhood of the Bosleys'

apartment, Deputy Sheriff Fields, an

employee of the Marion County Sheriff's

Department, without knowledge of the

robbery, routinely stopped a Volkswagen

with a noisy muffler (Tr. p. 232).

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Using a flashlight to glance inside the

car, the Deputy saw in plain view a

"tire tool or pry bar protruding from a '

brown paper sack" lying on the floorboard

between the two seats (Tr. p. 239).

On direct examination et the suppression

hearing prior to trial, Deputy Fields

testified that he had been checking security

at a gasoline station when he observed a

Volkswagen go past him (Tr. p.- 187). That

Volkswagen was exhibiting a loud muffler.

Upon noticing the vehicle, he left the

gasoline station with the intention

of stopping the car and checking the muffler,

the driver, and the driver's license of

the driver (Tr. p. 188). When he pulled

out behind the Volkswagen to first stop

it, a district car running west of him

had received a disturbance run at a certain

address. The Deputy did not immediately

stop the car because he thought he

might be called to assist the other officer.

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When this did not eventuate, he turned

on his red light and spotlighted and

stopped the Volkswagen (Tr. Pp. 189).

At this time, he walked up to the

Volkswagen and told the driver to proceed

as he had been dispatched on this other

run (Tr. p. 240). As he first looked in ,

the car he saw the tire tool, but still ;

‘told the driver to proceed. When he

returned to his car, he was told to

disregard the disturbance run. In the

intervening time, the Volkswagen had not

attesoted te pull away from the scene.

/When he returned to the Volkswagen the

second time, still without knowledge of

the robbery, he flashed his light into

the back seat. At this time the Deputy

again noticed the brown sack on the

floorboard between the seats. The Deputy

SET ES SH TPT ED NT a ER EET OED: SEE AE eM

told the petitioner and the driver of the

Tyee

Volkswagen to get out of the car (Tr. p. 201)

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After the individuals left the car,

the Deputy reached into the car and

examined the contents of the paper sack.

He looked into the car again and saw a

blue overnight case and another brown

sack therein (Tr. p. 202). After finding

the articles in the paper sack, the

Deputy walked to the rear of the car

and stood in front of the two men and

asked for identification from both of

them. At this time, the driver took

one Step backwards and when his: hand

came back up he had an automatic in his

right hand (Tr. p. 204). After hearing

a "click" from the driver's weapon, the

Deputy shot the driver (Tr. p. 208).

During this entire period of time, the

Deputy had no knowledge of the robbery

(Tr. p. 211). The Deputy handcuffed the

petitioner, lay him near the recently

deceased and called headquarters (Tr. p. 214).

When the Bosleys arrived the Petitioner

was still handcuffed and about three or

four feet from the body of the driver.

On cross-examination, Deputy Fields

stated that the only reason for ordering

the two men out of the car was his instinctive

feelings aroused by the tool in the paper

sack. He did not suspect a weapon

(Tr. p. 250).

Two detective-sergeants employed by

the Marion County Sheriff's Department

also testified at the suppression hearing.

Detective James Guilinger stated he

arrived at the Bosleys' home at

approximately 2:39 a.m. and found the

couple handcuffed to a railing going to

the upstairs of their apartment. The

couple indicated to the sergeant that they

had been robbed, but that they could not

identify the men who had robbed them

because the men wore masks over their

faces (Tr. p. 270). Both suspects were

white males wearing brown suede shoes and

skin colored rubber gloves (Tr. p. 270).

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Approximately 3:30 to 3:45 a.m. the

detective took the couple to the scene

of the shooting and told them that there

had been an incident not far from their

home and that the individuals involved

in that incident might be the same people

who robbed them. He led them to believe

that the police had apprehended the people

who had robbed them (Tr. pgs. 271-273).

The other detective-sergeant was

William J. Roberts. Roberts received a

call at home which informed him that

Deputy Fields had shot a man (Tr. p. 256).

When he arrived on the scene, the petitioner

was lying on the ground inside a cordoned

off area next to the deceased. There was

a gun in the vicinity and blood on the

deceased (Tr. p. 260). Roberts had

conversation with the Bosleys and questioned

them about the incident at their home.

He told the Bosleys that the sheriff's

-j1-

ee

department had two suspects who matched

the description given by the couple

(Tr. p. 261). Mr. Bosley went to the car

and identified an Overnight case which

had been reported stolen in the robbery

(Tr. p. 262). The couple was asked if

they knew an Eddie Lee Prasier. They

responded that they did. However, they

added that they could not identify the

men who robbed them, but they did know

an Eddie Lee Frasier (Tr. P. 263-264).

Roberts stated that the man lying hand-

cuffed on the ground was Eddie Lee Frasier

(Tr. p. 263).

Larry Bosley, one of the victims of

the robbery, stated that two men wearing

masks -- apparently pillow cases -- were

waiting at this home when he and his wife

returned from the State Fair with the

receipts from the booth they operated

at the fair (Tr. p. 279). Although he

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could not identify either of the men,

he did give the officers a description

of the clothing they were wearing

(Tr. p. 280). At the pre-trial

suppression hearing he testified that the

officers had told him that the two men

at the scene of the shooting were suspects

in the robbery (Tr. p. 282). During the

trial, Mr. Bosley stated that he based

his identification of the petitioner

from seeing him lying in the street

next to the dead man (Tr. Pp. 523).

Karen Bosley, the other robbery

victim, confirmed her husband's testimony.

When the officer freed her, she was

unable to give any description of the

men who robbed them (Tr. Pp. 292).

Detective Roberts asked her at the scene

of the shooting whether the two men lying

in the street were the ones that were in

the apartment that night. She answered

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in the affirmative (Tr. p. 301). The

motion to suppress both the confrontation

evidence and the physical evidence was

overruled sequential to the above

testimony. Later at the trial Mrs. Bosley

confirmed her previous testimony and added

that at the time of the robbery she thought

she recognized one of the voices (Tr. p. 356).

Subsequent to the trial, while the

jury was deliberating, the bailiff, James

Fletcher, heard a knock on the jury room

door. Inquiring, the bailiff learned that

the jurors had a question concerning the

result of sentencing on a finding of

guilty on both charges (Tr. p.- 16). The

jurors wanted to know whether the sentences

would run concurrently or consecutively

(Tr. p. 16). Mr. Fletcher told them

he would talk to the judge. Judge Wilson

told Mr. Fletcher to tell the jurors that

the question could not be answered. When

he returned to the jury room, instead of

-14-

repeating the judge's comment, the

bailiff told the jury that the sentencing

of the defendant was up to the judge

(Tr. p. 16). Petitioner's counsel,

was not informed of this conversation

until a few moments before the jury

returned with the verdict. The jury

ordered the highest possible sentence

on both counts of the two count indictment:

those sentences being thirty (30) years

at the Indiana State Prison out of a

possible penalty of ten (10) to thirty

(30) years for the offense of armed

robbery and ten (10) years at the Indiana

State Prison out of a possible penalty

of one (1) to ten (10) years for the

offense of violation of the 1935 Firearms

Act.

In summary, it is petitioner's

contention that there are three important

Constitutional questions presented by the

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evidence. First, was any evidence ,

admissable since the entire episode

subsequent to the stopping of the

Volkswagen for a loud muffler--not an

offense which would result in a “custodial”

arrest as the violator would normally

sign a summons and be sent on his way--

was the result of a search inspired

solely by Deputy Fields’ instinct and

suspicions? Second, was not the on-the-

.scene identification unduly tainted by the

statements of the police officer who

made comments to the Bosleys? Third,

is it not improper for a court official

to make comments to the jury--comments

improper as to the law states therein--

out of the hearing of the Defendant and

his counsel?

-16-

The Petitioner first raised the

constitutional questions concerning the

unlawful search and police show-up in a

Motion to Suppress Evidence which was filed

with the trial court prior to trial on

December 26, 1972 (TR. P. 58). A hearing

was held on the first day of the trial

(Jan. 29, 1973), on this Motion to Suppress

Evidence which motion was then overruled by

the trial court (TR. P. 72). These same

constitutional questions, along with the

new issue concerning the comments by the

court bailiff were presented in the Motion

to Correct Error's (TR. P. 161-162). These

same questions were then argued to the

Supreme Court of Indiana on the direct

appeal from the judgment of the trial

court.

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ARGUMENT

I.

Petitioner's first claimed con-

stitutional error arises from the

initial search of the automobile in

which he was a passenger. This search

was conducted by a Deputy of the Marion

County Sheriff's Department. Petitioner

objected prior to and during the trial

to the admission of any of the fruits

of that improper and unconstitutional

search. Neither the trial court not the

Supreme Court of Indiana agreed:

Appellant believes that the many

items of evidence found in the car

should have been excluded from the

trial because they were the fruits

of an illegal, unconstitutional

search. Ma v. Ohio (1961) 367

U.S. 643, 81 S. Ct. 1684, 6 L.Ed.

2d 1081. Appellant's reasoning

is that the Deputy had no probable

cause to look into the paper sack

and that the ensuing shootout and

search of the car were caused by

this original search. Thus, runs

Appellant's argument, the tainted

fruits of that search must be

-18-

excluded. We do not decide this

point for the reason that we

decide this issue pursuant to

Gustafson v. Florida, (1973) 42

L.W. , 414 U.S. 260, 94S. ct.

488, 38 L. Ed. 2d 456. Gustafson,

Supra, held that police officers

effecting a valid custodial arrest

for a traffic offense may thoroughly

Search the arrestee even absent the

need to disarm or the need to seize

evidentiary items which had been

the justifications previously used

for searches incident to valid arrests

As the United States Supreme Court

said in the companion case to

Gustafson, supra: "It is the fact

of the lawful arrest which establishes

the authority to search, and we hold

that in the case of a lawful custodial

arrest a full search of the person

is not only an exception to the

warrant requirement of the Fourth

Amendment, but is also a ‘reasonable’

search under that Amendment" United

States v. Robinson, (1973) 42 L.w.

at 4060, U.S. 218 at 235,

94 S.Ct. 467 at 477, 38 L.Ed. 2d 427

In Indiana an inadequate muffler

is a misdemeanor. Ic 1971, 9-8-6-36

(Burns' Ind. Stat. Ann. §47-2230

(Code Edition)). A Deputy Sheriff

may arrest any person violating any

law of this state in his presence.

IC 1971, 35-1-21-1 (Burns' Ind.

Stat. Ant. §9-1024 (1956) Repl.) )

Acting within this authority, the

Deputy asked for identification.

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oe

Since he had the right to make

an arrest and a search incident

thereto, he had the right to make the

considerable lesser intrusion of a

request for identification. The

ensuing assault on the Deputy validates

the subsequent search of the car and

seizure of the items therein. Chambers

v. Maroney , (1970) 399 U.S. 42,

50 S. Ct. 1975, 26 L. Ed. 24 419;

Brannon, Burton v. State, (1957)236 Ind.

680, 142 N.E. 2d 215; Sisk v. State,

(1953) 232 Ind. 214, 110 N.E. 24 627.

Frasier vs. State, 312 N.E. 2d 77, 79-80 (1974)

This is the Supreme Court of Indiana's

justification for the search and seizure of

all evidence. However, key facts are not

clear and in proper context. These defects

were presented to the Indiana Supreme Court

in the petitioner's Motion for Rehearing.

Mainly, the illegal search referred to by

petitioner is the initial search of the

paper sack located within the Volkswagen.

But for this search of the paper sack, there

would have been no killing, and neither

would there have been any subsequent search

and notification of the robbery victims.

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The Indiana Supreme Court, in its

majority opinion in this case has sanctioned

this initial search of a saan sack seen

on the floor of a 1965 Volkswagen with the

theory that it was a search incident to

a lawful arrest and therefore not violative

of the Fourth and Fourteenth Amendments

under this Court's decisions in U.S. vs

Robinsan, (1973) 94 S. Ct. 467, and

Gustafson vs. Florida, (1973) 94 S. Ct. 488.

This opinion thus creates an immediate

expansion of the power of the police officers

to search motorists.

The uncontroverted facts are that when

Deputy Sheriff Fields first stopped the

1965 Volkswagen automobile he had no

knowledge of the recent armed robbery at

the Bosley home. His only authority to

stop the car at that time was for a

misdemeanor violation of one of the sections

-2l-

of the Indiana Motor Vehicle Code which

concerns the operation and maintenance of

certain automotive equipment. When he saw

part of a tire tool protruding from a

paper sack lying on the floor of the auto-

mobile he ordered the occupants out of the

car, Opened the sack and discovered a tire

tool, pink rubber gloves and a hunting knife.

All these of these exhibits, along with .

numerous others discovered after the shooting

incident were admitted at trial. Clearly

the opening of the paper sack on the floor

of the car constituted a search within the

meaning of the Fourth Amendment. Chambers

v. Maroney, (1970) 399 U.S. 42, 90 S.Ct.

1974, 26 L.Ed. 2d 419; Carroll v. U.S.,

(1925) 267 U.S. 132, 45 S.Ct. 280. The

Indiana Supreme Court found, however, that

although Deputy Fields had no probable cause

at the time of the search of the sack, it

was nevertheless proper solely on the

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\

grounds that the defendant and his

companion had been "arrested" on the loud

muffler charge and that the Robinson and

Gustafson decisions allow a police officer

to "thoroughly search the arrestee” in this

situation as a search incident to a lawful

arrest. This holding misinterprets those

decisions in two significant Ways. First,

Gustafson and Robinson concern the permissible

scope Of a search of a person incident to a

custodial arrest, but they do not authorize,

as the majority holding would seem to imply,

a search of those sections of a car which

lie beyond the area of control of the

arrestee. Secondly, neither decision concerns

the type of "arrest" with which we are

confronted here.

On those occasions when a police

officer in Indiana stops a motorist for a

minor traffic violation, as we have here, the

officer is not empowered to automatically

-23-

taps nnn

effect a full custodial arrest and haul a

motorist off to the stationhouse. Both I.C.

1971, 9-4-1-130, being Burns §47-2307 and a

1971, 9-4-1-131, being Burns §47-2308, requjre

that the officer may only issue a summons

to the offender and then must allow him to

proceed on his way. It is only in the case

of a serious traffic offense (Burns §47-2307

(2) to (5), or in the event a motorist

refuses to promise to appear in court at a

future date (Burns §47-2307(6) that the

police may effect a full arrest and take the

motorist to the police station for booking.

In a normal traffic misdemeanor situation a

police officer may only impose what May be

termed a limited arrest for the purpose of

issuing the summons and then must release the

motorist from this limited form of custody.

Both the facts and language of

Gustafson and Robinson specifically concern

the type of traffic violations which requires

-24-

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or allows an officer to effect a full

custodial arrest. It is apparent from the

opinions that the sole basis for the full

scale search of the motorist was the full

custodial type of arrest being effected in

both of those situations.

"The justification or reason for the

authority to search incident to a lawful

arrest rests quite as much on the need

to disarm the suspect in order to take

him into custody as it does on the need

to preserve evidence on his person for

later use at trial."

"It is scarcely open to doubt that

the danger to an officer is far greater

in the case of the extended exposure

which follows the taking of a suspect

into custody and transporting him to the

iice station than in the case of the

relatively fleeting contact resulting

from the typical Ter type stop.

This is an adequate Exeis for treating

all custodial arrests alike for purposes

of search justification.” (Emphasis

added.) U.S. v. Robinson (1973) 94

S.Ct. at 476.

In a footnote in Robinson this Court

made a sharp distinction between the full

custodial arrest with which it was concerned

in that case, and what was characterized

-25-

by the Court as a "routine traffic stop,

i.e. where the officer would simply issue

a notice of violation and allow the offender

to proceed." Fn. 6 at 477. The majority

specifically stated that they were not

deciding the constitutionality of searches

incident to these routine traffic stops.

It is precisely that type of limited arrest

resulting from a routine traffic stop which

faces us here, and while the Fourth

Amendment does not prevent a full search

incident to a lawful custodial arrest it

does not condone a full search incident to

a routine traffic stop where the police

officer is not authorized to take the

motorist into custody. The Supreme Court

of Indiana justifies the search of the

arrestee on the grounds of the full custodial

nature of the arrest, but where, as here,

there is no full custodial arrest the

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justification and rationale allowing the

search is obviously absent.

The United States Court of Appeals,

District of Columbia Circuit, Bazelon, C.J.,

in overruling the conviction of Willie

Robinson, Jr., by the United States

District Court for the District of Columbia,

clearly and ably discussed the difference

between a full custodial arrest and a routine

traffic stop, and the searches which may be

made attendant thereto. Although the Court

of Appeals holding was subsequently

reversed by this Court in its decision on

Robinson, the aforementioned footnote

indicated this Court would not "reach the

question." As that question is the

linchpin issue in this cause, the Court

of Appeals discussion should be awarded

careful scrutiny.

"In determining the extent to

which the legitimate governmental

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interest in insuring the safety of

law enforcement officers justifies

a search of the person incident to

a lawful arrest, a distinction must

be drawn between the “routine” traffic

arrest--where the officer simply

issues a notice of violation and allows

the offender to proceed--and the more

serious cases in which the officer

effects an “in-custody” arrest in order

to transport the traffic offender to

the stationhouse for booking. Turning

first to the “routine” traffic arrest,

it seems evident that the dangers

presented in that situation are to some

extent similar to, and certainly no

greater than those presented in the

stop-and-frisk situations involved in

TERRY and SIBRON. Like the investigatory

stop, the routine traffic arrest is

merely a brief on-the-street encounter.

Moreover, the vast majority of traffic

violators are law-abiding citizens.

Indeed, ‘'[v[ery few drivers can traverse

any appreciable distance without

violating some traffic regulation.’ and

as Chief Judge Fuld of the New York

Court of Appeals has noted, "A motorist

who exeeeds the speed limit does not

thereby indicate any propensity for

violence or iniquity, and the officer

who stops the speeder has not even the

slightest cause for thinking that he

is in danger of being assaulted.”

PEOPLE V. MARSH, 20 N.Y. 2d 98,101,

281 N.Y.S. 20 789, 228 N.E. 2d 783,

786 (1967).

This is not to say, of course, that a

minor traffic stop can never erupt into

=28-

violence. On the contrary, whenever

a police officer confronts a citizen

on the street an element of danger is

present. But as the stop-and-frisk

cases make clear, the mere possibility

of danger cannot justify any and all

searches the officer may wish to

conduct. The touchstone of the Fourth

Amendment is reasonableness, and the

possibility that a routine traffic stop

might result in injury to the officer,

although unquestionable real, is so

remote that '[t]o allow the police to

routinely search for weapons in all

such instances would * * *constitute an

‘intolerable and unreasonable' instrusion

into the privacy of the vast majority

of peaceable citizens who travel by

automobile’ PEOPLE V. SUPERIOR COURT

OF YOLO COUNTY [Kiefer], 3 Cal. 3d 807,

91 Cal. Rptr. 729, 744, 478 P.2d 449,

464 (1970) (en banc).

We therefore conclude that the

permissible scope of searches incident

to routine traffic arrests, where there

is no evidentiary basis for a search

and where the officer intends simply

to issue a notice of violation and to

allow the offender to proceed, must

be governed by the teaching of the

Supreme Court as set forth in TERRY

and SIBRON. Thus the most intrusive

search the Constitution will allow in

such situations is a limited patdown

for weapons, and then only when there

exist special facts or circumstances

which give the officer reasonable grounds

to believe that the person with whom

he is dealing is armed and presently

-29-

dangerous.”

UNITED STATES V. ROBINSON, 471 F.2d 1082,

1056-97 (CADC I97Z}~ AS tS abundantly

clear, the scope of a search incident to

a routine traffic arrest should be severly

restricted.

However, the Indiana Supreme Court's

present interpretation of the Gustafson and

Robinson decisions as allowing a full scale

search of anyone who violates any traffic

regulation, invites wholesale and groundless

intrusions upon the personal privacy of

thousands of motorists. Thus, under

this interpretation the vast number of

citizens who travel by automobile and who

may be stopped for having a multitude of

minor traffic offenses, are subject, without

further authorization or circumstances, to

not only having the contents of their

wallets, pockets and pants cuffs examined

by the police, but their entire

vehicle as well. |

There are only two real justifications

-30-

@ etwas Ce el as ee ote, pone ea ere (RM) ORO bCRYS —e ee: csiraanenmeenny 9

for searching a person and his surroundings

after a valid arrest, whether the arrest

be custodial in nature, or merely a limited,

routine traffic stop under conditions where

the defendant-suspect is not to be transported

to the local jail or police headquarters.

Those justifications are (1) where evidence

of the crime charged or suspected must be

secured, and (2) removal of any weapon the

arrestee might seek to employ to resist

arrest or effect an escape. The two

categories are deserving of different

treatment as their central purposes

are not the same. The first category is

the "search incident to a lawful arrest.”

The lawful arrest justifies the search for

fruits, instrumentalities and evidence

for which the arrest is made, but may only

be made after the arrest is effected. The

second category operates on a contrary

basis. A broader time period than the time

-3l1-

sa i aaa i 0

Wyre LOS TM are “repeEn*

a ad

ro |

for the search incident to a lawful arrest

is created by the i: nee of a police

officer's protecting himself at all times

and pursuant thereto a proctective, Terry-

type search may be constitutionally executed

prior to an arrest based upon probable cause.

A narrower area for the search is created

by the very fact that there are only certain

areas from which threats to the police

officer may be obtained. Therefore, although

fruits of a search incident to a lawful arrest

may be drawn from an area outside the immediate

reach of the arrestee, a search for weapons

and other dangerous instrumentalities should

be limited only to those areas within the

immediate control of the arrestee.

Under either treatment model, there

is a scope beyond which the search is clearly

improper. In the situation at bar, the stop

and limited, routine traffic arrest were

pursuant to the Deputy'’s observation of a

-32-

misdemeanor being committed in his presence.

After the plain view sighting of the tire

tool in a paper sack, the Deputy told both

occupants of the Volkswagen to get out of

the car and stand at the rear of the car.

Rather than ask for a driver's license and

car registration, and rather than search

the occupants for weapons, both searches

being within the scope of either a search

incident to a lawful arrest or a protective

search, the Deputy proceeded to search the

paper bag on the back seat of the car. even

though he knew of no crime with which they

might be associated. This specific search

was outside the scope of both treatment

models mentioned above. The search of the

car was not incident to the lawful, limited

routine traffic arrest because no evidence

of the crime charged was inside the car.

Also, in addition to the fact that the

Deputy testified that he apprehended no

-33-

ere PP epr2

7

fear and was not worried for his safety,

the occupants were outside the Car, and

therefore the scope of a protective search

was exceeded, as there is no way, standing

at the rear of the car, the occupants could

have reached into the car and gained control

of some instrumentality which would pose a

threat to the Deputy.

"It]his Court has held that a

search which is reasonable at its

inception may violate the Fourth

Amendment by virtue of its intolerable

intensity and scope "and" [t]he scope

of the search must be Strictly tied

to and justified by the circumstances

which rendered its initiation permissible. "

TERRY V. OHIO, 392 U.S. 1, 17-19, 88

S. Ct. , 1878, 20 L.Ed. 2a 889

(1968).

Subsequent to Terry, in Chimel v.

California, 395 U.S. 752, 89 S.Ct. 2034,

23 L.Ed. 2d 685 (1969), this Court more

firmly outlined the law applicable to both

Searches incident to a lawful arrest and

Searches constituted for the protection of

the arresting authority. In Chimel, where

-34-

|

the defendant was arrested in his home,

pursuant to an arrest warrant, the arresting

officers, who had no search warrant, proceeded

to search the defendant's entire house.

The result, reached by this Court, was that

"(A]pplication of sound Fourth Amendment

principles to the facts of this case

produces a clear result. The search here

went far beyond the petitioner's person and

the area within which he might have obtained

either a weapon or something that could have

been used in evidence against him. There

was no constitutional justification, in

the absence of a search warrant, for

extending the search beyond that area. The

scope of the search was therefore, ‘unreasonable’

under the Fourth and Fourteenth Amendments...

"Supra, 395 U.S. at 768, 23 L.Ed. 2d at 697.

Petitioner contends that even if

Gustafson and Robinson are to be extended

to cover situations where the arrest is only

-35-

for a minor traffic offense, and the

customary procedure would not entail taking

the misdemeanant into polics custody,

Chimel still remains to act as a brake on the

scope of any search made either incident to

the lawful arrest or for the protection of

the arresting officer. Therefore, even if

a search was proper in the situation at bar,

the scope of that search was excessive.

The actions of Deputy Fields were in

clear violation of the defendant's Fourth

and Fourteenth Amendment rights when the

Deputy examined the paper sack on the floor

of the car. The evidence subsequently

admitted at the trial was not harmless

error under the decisions of Chapman v.

California, (1967) 386 U.S. 18, 87 S.Ct.

824, 17 L.Ed 2d 705, and Harrington v.

California, (1969) 395 U.S. 250, 89 S.Ct.

1726, 23 L.Ed. 2d 284. Therefore, this case

should be reversed.

-36-

vo Pn

. II.

At least five persons testified during the

various hearings and the trial as to the

identifications made by the Bosley's at

the police conducted “show-up." Petitioner

contends that any such identification was

‘unduly tainted by the very nature of the

show-up. The Bosley's told the officers

that they either could not identify the

robbers or else could not give a description.

Mr. Bosley could not identify the robbers,

but he did furnish a description of their

clothing. Ms. Bosley, at the robbery

scene, could not identify anyone, and

could not give a description of the clothing,

but she did say that she recognized a voice,

although she could not associate that voice

with a name until she had seen Petitioner

at the scene of the shooting.

| Regardless of the sequence of events

leading up to the identification of Petitioner

-37-

Dy

/

ee aan om th he (2 ee

as one of the robbers, there is no doubt

but that the show-up was so unduly

suggestive as to warrant the suppression of

the Bosley's identification of Petitioner.

"If the pre-trial lineup did not meet

constitutional standards, then the witnesses'

in-court identifications were the fruit of

a forbidden procedure and should not have

been used in the state's case." United

States v. Wade 388 U.S. 218, 87 S.Ct.

1926, 18 L.Ed. 2d 1149 (1967).

The above conclusion from Wade

reaches to the heart of Petitioner's

contention. It has been held improper

for the officials of the state, in this

case the police, to give the witness making

the identification the impression that

the person they are asked to view is the

suspect in the case. It is true that this

is very hard to accomplish, but if the

witness were merely being asked to identify

-38-

isi ese enn ner Hone

an individual who was another witness

to the event in question, but exhibited

hesitancy to step forward, it is certain

the first witness, who is making the

identification, would be apprised of the

proper relationship of the parties to the

event. Here, on more than one occasion,

the Bosley's were told that the individuals

they were looking at were indeed suspects

in the robbery. The Fifth Circuit Court

of Appeals has very ably capsulized the

current law in this area:

By inviting to view the suspect

as he sat alone in the state

attorney's office beside one_or two

police officers, the police in effect

suggested that ‘This is the man.'

Foster v. California 394 U.S. 440,

3, 89 S.Ct. , 22 L.Ed. 2d 402

(1969). Such singling out, or

indicating to the witness that the man

in custody is the man the police

believe to have committed the crime,

is a classic example of impermissible

Suggestiveness. See Crume v. Beto,

383 F2d 36, 39 (CA5 1567), cert

denied, 395 U.S. 964, 89 S.Ct. 2106,

23 L.Ed. 2d 749 (1969). Consequently,

the state committed constitutional error

-39-

: ei i. i. ese |

in eliciting testimony of identifications

made at this tainted procedure, and

since it has made no attempt to show

that its error was harmless beyond a

reasonable doubt under the teachings of

Chapman v. California 386 U.S. 18,

87, S.Ct. 824 17 L.Ed.2d 705 (1967),

petitioner is entitled to federal

habeas relief. Should the state

decide to retry petitioner, it must do

so without testimony of identifications

made at the show-up.

Rudd v. Florida (CA5 1973) 477 F2d 805.

Following the above model, Petitioner

contends that there was indeed too much

information of a suggestive nature transfered

from the deputies to the Bosley's. The

transcript is full of testimony wherein the

deputies just tell the Bosley's that they

think they have the suspects. Further,

as no one had supplied more than a

description of the suspects, and even upon

Seeing one suspect dead and the other

handcuffed on his face in the immediate

vicinity of the dead man, there was no

positive identification except for the

-40-

i

ad

-—

testimony of Ms. Bosley, who had not been

able to supply even a description until ti.at

time.

Because of the very nature of the on-

the-scene identification, any testimony at

trial should have been suppressed. Yet the

fruit of the improper show-up was allowed

into evidence. The state contended

previously that there might have been

sufficient independent indications that the

identification was trustworthy and therefore

- the suggestiveness of the identification

should not result in the identification being

thrown out. However, the only information

which tended to associate either suspect to

the robbery was the fact that the blue

ceniemteics case, reported stolen during the

robbery ,was found in the car also. However,

the overnight case had been described as

having airplane stickers on it and also as

having had no holes in it when the witness,

-41-

Ms. Bosley, last saw it. The blue overnight

case found in the car had no such stickers

on it, and was damaged much more than

Ms. Bosley had ever indicated. Aside from

the overnight case, there was only the

illegally seized tire tool to create the aura

of a robbery. There is no question but

that there was not sufficient additional

evidence, of a corroborative nature, to allow

the identification to stand regardless of the

suggestive nature of the show-up.

As there was no manner in which the

suggestive show-up could be redeemed, the

testimony as to that show-up should have

been excluded. This is not a situation

where subtlety and innuendo are employed

in order to suggest that the witness should

select a certain individual as the prime

suspect in a crime. This is a situation where

the witnesses were blatantly told that the

individuals they were to view were indeed

-42<

ee ee ae See ee

suspects in a particular crime. Such

behavior far exceeds the narrow limits

established in Wade, Gilbert, Stovall v.

Denno, and all subsequent cases which

reflect not only on the proper procedure

to employ when on-the-scene confrontations

are made, but also on those procedures

which are to be avoided when on-the-scene

confrontations are made.

IIl.

As stated in the Facts section, the

bailiff, James Fletcher made a statement

to the jurors, evidently in response to a

question posed by the jury: members, which

petitioner contends was not only prejudicial,

but highly improper in a Constitutional

sense.

There are two approaches to this

particular argument. First, petitioner

contends the actions of the bailiff denied

him a fair trial. Second, petitioner

~43-

s

}

believes he was denied due process by

virtue of being denied that fair trial.

Petitioner is not contending that any

conversations between deliberating jurors

and an outside party automatically result

in a denial of a trial and a denial of due

process. The key fact to remember in this

particular situation is that the bailiff

made comments to the jurors, and aha

content of those statements was contrary to

the law in Indiana. Inasmuch as the question

posed by the jurors had to do with a

particular point of law, and the question was

answered incorrectly, the prejudice is

practically apparent.

Law in Indiana, contrary to law in the

Federal Court systems, states that the

jury not only renders a verdict, but upon

a finding of guilty sets the penalty. The

statutes under which the petitioner was

being tried allowed the jury discretion in

-44-

reaching their ultimate verdict. However,

it is likely the jury was of the impression

that any penalty they chose would be merely

a recommendation to the Judge, and then the

Judge would make the final determination.

With this in mind, and after having

decided that the petitioner was guilty, the

jury may have wished to impress the Judge

with their attitude towards the penalty

which they would levy, and their impression

of the heinous nature of the offense. It

is always possible, had the jury known

that their word was final, they would have

either taken more care or made further

consideration before returning their verdict.

On appeal to the Supreme Court of

Indiana, the State contended, and the Indiana

courts agreed, that the fact that the

Judge had explained the role of the jury

to the members of this jury immediately

after voir dire was sufficient to create

-45-

the proper impression in the members.

However, if that were true, the jury

would have had no need to ask the question

in the first place. The fact of the asking

is the best proof that the jury did not

know its full and complete role, and there

is no way the giving of the instruction

at the beginning of the trial can militate

against the fact that the jury did not

realize the extent of its functions, and

therefore felt compelled to ask further

questions.

The proper procedure to have followed

would have been for the jury to have been

brought back into the courtroom, and have

all parties present while the Judge asked

the jurors what their question vas, and

then have the Judge, in open court, answer

the question if indeed it could be answered.

Instead, the bailiff returned to the jury

and not only failed to relay the decision

-46-

~

ots

athe

EE ETAT ESE TS PE eB BRNO aa re er _ _ — St

of the Judge, but actually gave the jury

information which was incorrect as to the

law stated therein.

Much of the above information relates

equally well to the second half of the

argument on this particular issue. Namely,

petitioner further feels he was denied due

process under thé (Fifth and Fourteenth

Amendments to the Constitution of the United

States. The right to a trial is a fundamental

right. As such, before the state may take

any action which will justify depriving

someone of that right, the state must

exhibit a compelling interest. In this

case, the state must either have had some

compelling interest in ruling that there

had been no prejudice or denial of right

inherent in its actions, or else they must

argue there was no denial of right in the

first place. Evidently, the state is

arguing that there is no denial of right.

a4 Ju

Fad

*

‘

Pe RD Pee PA ate Ee Ry Ae ee AN FL TONE ERLE.

However, the previous argument, which

demonstrates- that prejudice and damage

may well have resulted from the actions

of the bailiff, applies equally well here.

Further, the only interest which the state

apparently attempts to advance is the interest

in avoiding multiple trials simply because

the jury may have been misinformed as

to the applicable law. These facts and

inferences indicate the state's argument

is weak under either of the possible

justifications they may employ.

Finally, it is unlikely the State

could successfully contend that the action

of the bailiff was harmless beyond a

reasonable doubt. An act which conflicts

with such a fundamental right as the

right to a trial can only be harmless

beyond a reasonable doubt if every

possibility of harm can be presented and

analyzed to determine just what might have

-48-

had an effect on the parties involved.

Here, the harmful act was made off the record;

yet directly to the jury. There is no way

the petitioner can hope to accurately

demonstrate what effect the misstatement

had on the jury members. It is equally

true, there is no way the state can

predict what occured in the jury room.

Therefore, at the very least, either

the jury should have been sent back to

deliberate with the new--and proper--

facts in mind, or a_new trial should have

been ordered.

CONCLUSION

For the foregoing reasons, Petitioner,

Eddie Lee Frasier, prays that a Writ of

Certiorari issue to review the Judgment

and pinion of the Supreme Court of

Indiana entered in these proceedings.

Respectfully submitted,

-49-

SRE BEE LEGION LIE LS TP OM ee EAT LE ILE OR OR TOIT ER tL

FERD SAMPER, JR.

703 First Federal Bldg.

Indianapolis, Indiana 46204

JAMES H. VOYLES, JR.

1500 Consolidated Bldg.

115 North Pennsylvania St.

Indianapolis, Indiana

46204

Attorneys for Petitioner

ON PETITION

763 First Federal 'ildg.

Indianapolis, Indiana

46204

<

-50-

SORT PRES ESN AE BERET RETR Ee He MO ee |

FRASIER V. STATE 167

APPENDIX "A"

EDDIE LEE FRASIER v. STATE of INDIANA

SUPREME COURT OF INDIANA

No. 873 8149

June 4, 1974

APPEAL FROM THE MARION CRIMINAL COURT

Hon. JoHN B. WILSON, JR., JUDCE

Synopsis: Appeal from convictions by jury of violating the 1935 Fire-

arms Act (unlicensed possession of a gun) and of armed robbery.

Frasier contended (1) that many items of evidence found in the car

should have been excluded because they were the fruits of an illegal,

unconstitutional search; (2) that his identification by the robbery

victims at the scene of the shooting violated due process of law in

that the circumstances were overly suggestive; (3) that many items

of evidence admitted either did not have a proper foundation or a

sufficient chain of custody; (4) that a photograph of his dead alleged

accomplice and the narration of the shooting incident by the Deputy

Sheriff should not have been admitted as evidence because they were

irrelevant to the crimes charged; (5) that his identity as one of the

robbers was not sufficiently established; (6) that the trial judge

abused his discretion in allowing the State to reopen its case-in-chief

in order to prove the age of appellant; (7) that the builiff conducted

an improper conversation with the jury; (8) that the “Handbook

168

INDIANA DECISIONS

for Indiana Jurors” distribvted to the jury contained material prej-

udicial to his Fifth Amendment rights; and (9) that the court erred

in giving an instruction on flight.

The Supreme Court of Indiana, Arterburn, C.J., reversed in part.

DeBruler, J., dissented with opinion. Prentice, J., concurs in result.

“. . . police officers effecting a valid custodial arrest for a traffic

offense may thoroughly search the arrestee even absent the need to

disarm or the need to seize evidentiary items which had been the

justifications previously used for searches incident to valid arrests.”

“A Deputy Sheriff may arrest any person violating any law of this

State in his presence. . . . Acting within this authority, the Deputy

asked for identification. Since he had the right to make an arrest

{for an inadequate muffler] and a search incident thereto, he had

the right to make the considerably lesser intrusion of a request for

identification. The ensuing assault on the Deputy validates the sub-

sequent search of the car and the seizure of the items therein. [Cita-

tions omitted.]” “. .. the totality of the relevant circumstances does

not indicate a ‘substantial likelihood of misidentification.’” Appel-

lant did not assert that he was prejudiced by the admission of the

items. The photograph and the relation of the shooting incident were

part of the res gestae. The victims of the robbery made positive in-

court identifications of the appellant. The appellant did not in-

dicate why the reopening of the State’s case-in-chief was an abuse

of discretion. “The important point is not who offers an explanation

but that this Court be satisfied that ‘no harm or prejudice resulted’

from the misconduct of the bailiff.” The Handbook did not create an

implication that the defendant had a duty to testify and the judge ad-

monished the jury on that point. “An instruction on a certain theory

in a case is proper if within the issues and there is any evidence

to support it. [Citation omitted.]”

DeBruler, J., was of the opinion that “this view [the majority

opinion] is a dangerous misinterpretation of Robinson and Gustafson

and creates a precedent which erroneously and unwisely expands the

authority of the police to search motorists on Indiana highways.”

SEARCHES AND SEIZURES—Custodial Arrest for Traffic Offense. “. . .

police officers effecting a valid custodial arrest for a traffic offense

may thoroughly search the arrestee even absent the need to disarm

or the need to seize evidentiary items which had been the justifications

previously used for searches incident to valid arrests.” p. 170.

SEARCHES AND SEIZURES—Search Incident to Arrest. “A Deputy

Sheriff may arrest any person violating any law of this State in his

presence. . . . Acting within this authority, the Deputy asked for

identification. Since he had the righ: to make an arrest [for an inade-

quate muffler] and a search incident thereto, he had the right to

make the considerably lesser intrusion of a request for identification.

The ensuing assault on the Deputy validates the subsequent search of

the car and the seizure of the items therein. [Citations omitted.]”

pp. 170, 171.

APPEARANCES: Richard Milan, Indianapolis, Indiana, for Appellant.

Theodore L. Sendak, Attorney General of Indiana, Glenn A.

Grampp, Deputy Attorney General, for Appellee.

FRASIER V. STATE 169

ARTERBURN, C.J.

On January 30, 1973, a jury convicted appellant of violating

the 1935 Firearms Act (unlicensed possession of a gun) and of

armed robbery. Appellant was sentenced to ten (10) years on

the gun-possession charge and thirty (30) years on the armed

robbery charge.

Appellant has raised numerous issues. Some of his specifi-

cations of error relate to the armed robbery charge alone, and

some to the gun-possession charge, and some refer to the over-

all conduct of the trial itself. We reverse the trial court’s judg-

ment on the gun-possession charge. The evidence, from the

viewpoint most favorable to the State, Blackburn v. State

(1978), Ind. [34 Ind.Dec. 684], 291 N.E.2d 686, and

cases cited therein, is simply that appellant was a passenger in

an automobile stopped by a Deputy Sheriff. Both the driver and

appellant, who was riding in the front passenger seat, got out

of the car and stood at the rear of the car. A gunfight developed

between the driver and the Deputy Sheriff. Subsequent to this

gunfight, in which the driver of the car was killed, the appel-

lant was arrested. A search of the car revealed a pistol lying

on the passenger’s seat. These meager facts do not support,

as a matter of law, an inference that beyond a reasonable doubt

appellant once possessed this gun.

We affirm the conviction for armed robbery. We next

consider those specifications of error which relate to that charge

as well as those which involve the general conduct of the trial.

The following additional facts are relevant to the issues raised

by appellant.

On the night of August 28, 1972, two men with guns

robbed Mr. and Mrs. Larry Bosley in the Bosley’s apartment.

Moments after the robbery and in the vicinity of the Bosley’s

apartment, which was an area of frequent burglaries, Deputy

Sheriff Fields, without knowledge of the robbery, routinely

stopped a Volkswagen with a noisy muffler. Using a flashlight

to glance inside the car, the Deputy saw in plain view a “tire

tool or pry bar protruding from a brown paper sack” lying on

the floorboard between the two seats. The Deputy’s experience

suggested to him that such an object was a frequent burglar

tool. At the command of the Deputy, the two occupants of the

car got out and stood at either rear side of the car. The Deputy

then reached down and opened the paper sack. He discovered

that the object was a tire tool and that the sack contained three

- §3-

~

170 INDIANA DEC.s10NS

pink rubber gloves and a hunting knife. His suspicions further

aroused, the Deputy approached the two men and asked for

identification. The driver drew an automatic pistol and the

Deputy heard the pistol “click.” The Deputy shot and killed this

man. Appellant ran to the right front of the car but surrendered

when the Deputy fired at him through the rear window. Sub-

sequently, the car was searched at the scene and many items

seized which were introduced as evidence at trial. The robbery

victims were brought to the scene and there identified both the

dead man and appellant as the two men who had minutes earlier

robbed them.

Appellant believes that the many items of evidence found

in the car should have been excluded from the trial because

they were the fruits of an illegal, unconstitutional search. Mapp

v. Ohio (1961), 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684.

Appellant’s reasoning is that the Deputy had no probable cause

to look into the paper sack and that the ensuing shootout

and search of the car were caused by this original search. Thus,

runs appellant’s argument, the tainted fruits of that search

must be excluded. We do not decide this point for the reason

that we decide this issue pursuant to Gustafson v. Florida

(1973), 42 L.W. 4068 [94 S.Ct. 488], 38 L.Ed.2d 456. Gustaf-

son, supra, held that police officers effecting a valid custodial

arrest for a traffic offense may thoroughly search the arrestee

even absent the need to disarm or the need to seize evidentiary

items which had been the justifications previously used for

searches incident to valid arrests. As the United States Supreme

Court said in the companion case to Gustafson, supra: “It

is the fact of the lawful arrest which establishes the authority

to search, and we hold that in the case of a lawful custodial

arrest a full search of the person is not only an exception to

the warrant requirement of the Fourth Amendment, but is also

a ‘reasonable’ search under that Amendment.” United States

v. Robinson (1973), 42 L.W. 4055 at 4060 [94 S.Ct. 467], 38

L.Ed.2d 427 at 441.

In Indiana an inadequate muffler is a misdemeanor. IC

1971, 9-8-6-36 (Burns’ Ind.Stat.Ann. § 47-2230 (Code Ed.)).

A Deputy Sheriff may arrest any person violating any law of

this State in his presence. IC 1971, 35-1-21-1 (Burns’ Ind.Stat.

Ann. § 9-1024 (1956 Repl.)). Acting within this authority, the

Deputy asked for identification. Since he had the right to

make an arrest and a search incident thereto, he had the right

to make the considerably lesser intrusion of a request for

stk

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en OOM OO PLA EE EEO He be

FRASIER V. STATE 171

identification. The ensuing assault on the Deputy validates the

subsequent search of the car and seizure of the items therein.

Chambers v. Maroney (1970), 399 U.S. 42, 26 L.Ed.2d 419,

90 S.Ct. 1975; Brannon, Burton v. State (1957), 236 Ind. 680,

142 N.E.2d 215; Sisk v. State (1953), 232 Ind. 214, 110 N.E.2d

627.

Appellant claims that his identification by the robbery

victims at the scene of the shooting violated due process of

law in that the circumstances were overly suggestive. Stovall

v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967.

The inquiry, as formulated by the United States Supreme Ccurt,

is “whether . . . the confrontation was so unnecessarily sug-

gestive and conducive to irreparable mistaken identification

that (the defendant) was denied due process of law.” Stovall,

supra, 388 U.S. at 302. Our confrontation cases (Sawyer v.

State (1973), —— Ind. —— [87 Ind.Dec. 405], 298 N.E.2d

440 (photographs); Wright v. State (1972), —— Ind. ——

[32 Ind.Dec. 151], 285 N.E.2d 650; Dillard v. State (1971),

257 Ind. 282 [27 Ind.Dec. 346], 274 N.E.2d 387), have crystal-

lized the duty of the reviewing court to the basic inquiry of

whether or not the witness was, in fact, influenced by the

totality of the circumstances in a manner which indicates a

“very substantial likelihood of misidentification.” Sawyer,

supra, 298 N.E.2d at 443 [37 Ind.Dec. at 408]. Under the par-

ticular circumstances of this case, appellant is able to isolate

numerous circumstances which suggest what Justice Hunter

recognized as the inherent suggestiveness of “any one-on-one

confrontation.” Wright, supra, 285 N.E.2d at 653 [32 Ind.

Dec. at 155]. But in the case before us these circumstances are

outweighed by the fact that the victims knew appellant prior

to the robbery. Additionally, witness Larry Bosley, one of the

robbery victims, testified that his on-the-scene identification

was not based on anything the police said to him that night.

We think the totality of the relevant circumstances does not

indicate a “‘substantial likelihood of misidentification.”

Appellant makes an objection to the admission into evidence

of each of sixteen (16) different items of evidence. The grounds

for objection in each instance are that either a proper founda-

tion or a sufficient chain of custody had not been established

for any of the sixteen (16) items. Appellant does not, relative to

each item, specify in what way the foundation laid or the chain

of custody shown was inadequate. Consequently, we can only

say that in our opinion each item was sufficiently connected to

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172 INDIANA DECISIONS |

appellant to constitute a proper foundation. Rose v. State —

(1972), —— Ind. —— [30 Ind.Dec. 422], 281 N.E.2d 486; ©

Dizon v. State (1963), 243 Ind. 654 [1 Ind.Deéc. 318], 189

N.E.2d 715; Smith v. State (1961), 241 Ind. 598, 172 N.E.2d

678, and that within the guidelines of Bonds v. State (1973),

—— Ind.App. —— [39 Ind.Dec. 634], 303 N.E.2c 686, proper

chain of custody was established for the nonfungible kinds of

evidence involved in this case. Moreover, the items of evidence

here at issue were all cumulative evidence. There was an in-

_ court identification of appellant as the armed robber. Therefore,

‘ any error, with respect to the admissibility of these items of

evidence would be harmless since appellant in showing how

the alleged error was prejudicial to his cause, Turner v. State

(1972), —— Ind. —— [32 Ind.Dec. 605], 287 N.E.2d 339, and

cases cited therein, merely asserted that some of the items “were

specifically introduced by the State of Indiana to influence the

jury and to prejudice the defendant” which is not even an as-

sertion that defendant was in fact prejudiced.

Appellant asserts that a photograph of his dead alleged ac-

complice and the narration of tiat shooting incident by the

Deputy Sheriff should not have been admitted as evidence be-

cause they are irrelevant to the crimes charged, armed robbery

and unlicensed possession of a firearm. The proper form for

this kind of objection would be that the evidence lacks “ma-

teriality.” That is, it does not tend to prove or disprove a

proposition in issue. 12 I.L.E. Evidence § 41 (1959). Neverthe-

less, the evidence here in dispute was part of the res gestae and

was material for the reason that it tended to show flight, which

is a circumstance relevant to the commission of a crime, and

tended to show reasons for possession of a gun, which is ob-

viously a necessary element of a charge of unlawful possession

of a gun.

Appellant suggests that his identity as one of the armed

robbers was not sufficiently established since a minor dis-

crepancy existed between the description given by the robbery

victims to a sheriff’s deputy who came to their apartment, and

the clothing worn by the appellant when he was apprehended.

However, the decisive fact is that both victims made in-court

positive identification of appellant as one of the two men who

robbed them on the night in question.

Another contention made by appellant is that the trial

judge abused his discretion in allowing the State to reopen its

case-in-chief in order to prove the age of appellant. However,

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SGA RO 16 Sa FbNIS

FRASIER V. STATF 173

since appellant totally fails to indicate why the reopening was

an abuse of discretion we have no showing that appellant was

prejudiced by the court’s decision.

Appellant’s attorney has submitted an affidavit that

through an undescribed source appellant’s attorney learned dur-

ing the deliberation of the jury that the bailiff had had an

improper conversation with the jury. Specifically, it is al-

leged that a juror asked whether sentences would run consecu-

tively or concurrently. The bailiff said he would speak to the

judge. He did, and the iudge instructed him to tell the jury

that the question could not be answered. Instead, the bailiff

told the jury that the sentencing of the defendant was up

to the judge. The State has not replied to this contention, either

by submitting counter-affidavits or by argument. The rule for

situations of this kind is as follows:

“When an irregularity such as this occurs harm will be

presumed, and if the irregularity is not explained, a re-

versal of the judgment should follow. However, if an

explanation for the alleged misconduct is offered, and if

this Court is satisfied that no harm or prejudice resulted,

then the judgment of the trial court will not be disturbed.”

Conrad v. Tomlinson (1972), —— Ind. —— [29 Ind.Dec. 539

at 545-6], 279 N.E.2d 546 at 551. The important point is not

who offers an explanation but that this Court be satisfied that

“no harm or prejudice resulted” from the misconduct of the

bailiff. In the case at bar, appellant suggests that the bailiff’s

improper remark could have influenced undecided jurors to

vote guilty in the belief that the judge would mitigate such a

vote by light concurrent sentences. However, jurors had before

them the possible verdict forms. The verdict forms reveal on

their face the punishment to be inflicted. Moreover, the trial

judge told the voir dire panel that “the amount of penalty is

to be set by the jury in it’s (sic) verdict.” Therefore, we are

convinced that the jury was not misled in their deliberations.

Another allegation of error by appellant is that an Indiana

State Bar Association publication entitled “Handbook for Indi-

ana Jurors” which was distributed to the panel contained ma-

terial prejudicial to appellant’s Fifth Amendment rights. The

material complained of was the following descriptive passage:

“The court room trial events are substantially the same

in both civil and criminal cases. In all criminal cases the

plaintiff is the State of indiana and the plaintiff's lawyer

= St «

174 INDIANA DECISIONS ree

is the Prosecuting Attorney or a Deputy Prosecuting At- —

torney...

6. Defendant’s Evidence

A. Witnesses for Defendant

(1) Direct examination by defendant’s lawyer.

(2) Cross-examination by plaintiff’s lawyer.

(3) Re-direct examination by defendant’s lawyer.

B. Exhibits for Defendant (These may be submitted dur-

ing the questioning of witnesses).

7. Defendant Rests

8. Plaintiff’s Rebuttal Evidence

(Same as Number 4 above, except that this evidence is

confined to answering the defendant’s evidence.)”

Appellant’s argument is that this passage creates an implica-

tion that a defendant has a duty to testify. We see no such

implication available to men of ordinary ways of thinking and

reasoning. Furthermore, we think any possible misunderstand-

ing would have been cured by the trial judge’s admonishment,

in response to appellant’s complaint about the Handbook, to

the jury that “the Defendant is not required to testify by law

and constitution, and if he does not, this should not be con-

sidered or commented upon by the jury.”

Appellant’s final specifications of error relate to instruc-

tions. Appellant believes that the evidence did not warrant

the following instruction:

“The flight or attempt to escape by a person immediately

after the commission of the crime with which he is charged,

if there was such a flight, is a circumstance to be con-

sidered by you in connection with all the other evidence to

aid you in determining the question of his guilt or in-

nocence.”

Defendant’s argument is that what appeared to be flight—

running, when the shooting occurred, from the back of the car

to the front—was merely a reaction of fear and apprehension

for one’s own safety. Such an interpretation is for the jury.

An instruction on a certain theory in a case is proper if within

the issues and there is any evidence to support it. Moore v.

ee

FRASIER V. STATE 175

Funk (1973), —— Ind.App. —— [35 Ind.Dec. 532], 293 N.E.2d

534. A court in determining whether an instruction is ap-

plicable to the evidence must consider all reasonable infer-

ences which might be drawn from the evidence. John Hancock

Mut. Life Ins. Co. v. Gordon (1941), 109 Ind. App. 58, 32 N.E.2d

727.

Appellant asserts that those instructions (22A, 22B) which

encompassed the multiplicity of possible verdicts were “long

and cumbersome; they are unclear and relatively impossible to

understand.” These assertions, offered without specific ex-

amples or elucidation, are too general and too vague to be of

consequence. We cannot fathom the significance of an instruc-

tion being “relatively impossible to understand.” The jury

either understood or it did not. We have been offered no rea-

son by appellant to think that the jury did not understand.

In his “Motion to Correct Errors” appellant preserved an

objection to a certain instruction. Then, in his brief appel-

lant did not discuss the issue preserved by his motion to cor-

rect errors. However, in his reply-brief appellant attempted to

discuss the issue for the first time but the instruction and the

objection thereto were not quoted. Rule AP. 8.3(A) provides

that: ;

“When error is predicated on the giving or refusing of

any instruction, the instruction shall be set ovt verbatim

in the argument section of the brief with the verbatim ob-

jections, if any, made thereto. Any error alleged in the

motion to correct errors not treated as herein directed

shall be deemed waived.”

Appellant has thus twice failed to follow these requirements

and therefore the alleged error is deemed waived.

As hereinbefore explained, the judgment of the trial court

is reversed as to Count I, Violation of the 1935 Firearms Act,

and affirmed as to Count II, Armed Robbery.

Givan, and Hunter, JJ., concur.

Prentice, J., concurs in result.

DeBruler, J., dissents with opinion.

DISSENTING OPINION

DEBRULER, J.

The majority opinion sanctions the initial search of the

paper sack seen on the floor of the car with the theory that it

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176 INDIANA DECISIONS

was a search incident to a lawful arrest and therefore is not

violative of the Fourth Amendment under the United States

Supreme Court decisions in United States v. Robinson (1973).

94 S.Ct. 467, and Gustafson v. Fla. (1973), 94 S.Ct. 488. I

believe this view is a dangerous misinterpretation of Robinson

and Gustafson and creates a precedent which erroneously and

unwisely expands the authority of the police to search motorists

on Indiana highways.

When Deputy Sheriff Fields first stopped this automobile

he had no. knowledge of the recent armed robbery at the

Bosley’s home. His only authority to stop the car at that

time was for a misdemeancr violation of one of the sections of

the Motor Vehicle Code which concerns the operation and main-

tenance of certain automotive equipment. When he saw part

of a tire tool protruding from a paper sack lying on the floor

of the automobile he ordered the occupants out of the car,

opened the sack and discovered a tire tool, pink rubber gloves

and a hunting knife. All three of these exhibits, along with

numerous others discovered after the shooting incident, were

admitted at trial. Clearly the opening of the paper sack on

the floor of the car constituted a search within the meaning

of the Fourth Amendment. Chambers v. Maroney (1970),

399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Carroll v. United

States (1925), 267 U.S. 132, 45 S.Ct. 280 [69 L.Ed. 543]. The

majority today finds, however, that although Deputy Fields

had no probable cause at the time of the search of the sack, it

was nevertheless proper solely on the ground that the de-

fendant and his companion had been “arrested” on the loud

muffler charge and that the Robinson and Gustafson decisions

allow a police officer to “thoroughly search the arrestee” in

this situation as a search incident to a lawful arrest. This

holding misinterprets those decisions in two significant ways.

First, Gustafson and Robinson concern the permissible scope

of a search of a person incident to a custodial arrest, but they

do not authorize, as the majority holding would seem to imply,

a search of those sections of a car which lie beyond the area

of control of the arrestee. Secondly, neither decis‘on concerns

the type of “arrest” with which we are confronted here.

On those occasions when a police officer in Indiana stop:

a motorist for a minor traffic violation, as we have here, the

officer is not empowered to automatically effect a full custodial

arrest and haul the motorist off to the stationhouse. Both

IC 1971, 9-4-1-130, being Burns’ $ 47-2307 and IC 1971, 9-4-1-

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. FRASIER V. STATE 177

181, being Burns’ § 47-2308, require that the officer may only

issue a summons to the offender and then must allow him

to proceed on his way. It is only in the case of a serious traffic

offense (Burns’ § 47-2307 (2) to (5)), or in the event a motorist

refuses to promise to appear in court at a future date (Burns’

§ 47-2307 (6)) that the police may effect a full arrest and take

the motorist to the police station for booking. In a normal traf-

fic misdemeanor situation a police officer may only impose

what may be termed a limited arrest for the purpose of issuing

the summons and then must release the motorist from this

limited form of custody.

Both the facts and language of Gustafson and Robinson

specifically. concern the type of traffic violations which re-

quires or allows an officer to effect a full custodial arrest. It

is apparent from the opinions that the sole basis for the full

scale search of the motorist was the full custodial type of

arrest being effected in both of those situations.

“The justification or reason for the authority to

‘ search incident to a lawful arrest rests quite as much

on the need to disarm the suspect in order to take him

into custody as it does on the need to preserve evidence on

his person for later use at trial.

It is scarcely open to doubt that the danger to an of-

ficer is far greater in the case of the extended exposure

which follows the taking of a suspect into custody and

transporting him to the police station than in the case

of the relatively fleeting contact resulting from the typical

Terry type stop. This is an adequate basis for treating

all custodial arrests alike for purposes of search justifi-

cation.” (Emphasis added.) United States v. Robinson

(1973), 94 S.Ct. at 476.

In a footnote in Robinson the Court made a sharp dis-

tinction between the full custodial arrest with which it was

concerned in that case, and what was characterized by the

Court as a “routine traffic stop, i.e., where the officér“ would

simply issue a notice of violation and allow the offender to

proceed.” Fn. 6 at_477. The majority specifically stated that

they were not deciding the constitutionality of searches inci-

dent to these routine traffic stops. It is precisely that type of

limited arrest resulting from a routine traffic stop which faces

us here, and while the Fourth Amendment does not prevent a

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178 INDIANA DECISIONS

full search incident to a lawful custodial arrest I do not believe

it to condone a full search incident to a routine traffic stop

where the police officer is not authorized to take tiie motorist

into custody. It is evident that the Supreme Court justifies the

search of the arrestee on the grounds of the full custodial nature

of the arrest, but where, as here, there is no full custodial arrest

nl gpa cncae and rationale allowing the search is obviously

absent. ;

The majority’s present interpretation of the Gustafson

and Robinson decisions, as allowing a full scale search of any-

one who violates some traffic regulation, invites wholesale and

groundless intrusions upon the personal privacy of thousands

of Indiana motorists. Thus, under this interpretation the vast

number of Indiana citizens who travel by automobile and who

may be stopped for having a nonfunctioning license plate light

(IC 1971, 9-8-6-6, being Burns’ § 47-2204), or for failure to

dim their headlights for an oncoming car (IC 1971, 9-8-6-24,

being Burns’ § 47-2220), or for driving on studded snow tires

after the first of May (IC 1971, 9-8-6-39, being Burns’ § 47-

2233), or for any of a multitude of minor traffic offenses, are

subject, without further authorization or circumstances, to

having the contents of their wallets, pockets and pants cuffs

examined by the police.

I am not, of course, claiming that an officer can never

conduct a search after a routine traffic stop. We have repeatedly

recognized the essential concerns of a police officer for his own

safety when he encounters any citizen in the performance of

his duty, and where there exists special facts or circumstances

which gives the officer reasonable grounds to believe that the

occupants of a car are armed, he may conduct a protective frisk.

Terry v. Ohio (1967), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889:

Sayne v. State (1972), Ind. (29 Ind.Dec. 196], 279

N.E.2d 196; Parton v. State (1970), 255 Ind. 264 [23 Ind.Dec.

483], 263 N.E.2d 636. The majority opinion, however, does

not attempt to base its holding on the Terry exception, but

makes, what is in my opinion, the mistake of authorizing full

scale searches based on the sole fact of a minor traffic violation.

Since I believe Deputy Fields was in violation of the stric-

tures of the Fourth Amendment when he examined the paper

sack on the floor of the car and because I do not think the

admission of the pink gloves into evidence was harmless error

under the rules of Chapman v. California (1967), 386 U.S. 18.

87 S.Ct. 824, 17 L.Ed.2d 705 and Harrington v. California

MBO LLIV IA ts Orit

oe

FRASIER V. STATE 179

(1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, I find

I must dissent.