Opinion
No. 25,758.
Filed March 11, 1930.
1. CRIMINAL LAW — Appeal — Review — Motion to Withdraw Plea of Not Guilty — When Not Available Error. — On appeal from a conviction for transporting intoxicating liquor in an automobile, no error can be predicated upon the action of the court in refusing to permit defendant to withdraw his plea of not guilty for the purpose of filing a written verified motion to suppress all evidence discovered by the arresting officers or in refusing to permit the defendant to withdraw such plea for the purpose of filing a verified motion to quash the search warrant issued therein and to suppress and reject the evidence obtained thereby, where there was no showing that the defendant offered any evidence in support of his motions, or what the evidence was, if any was offered. p. 565.
2. CRIMINAL LAW — Motion to Suppress Evidence — Issue Not Tried — Trial by Court — Finding of Guilt Amounted to Finding Against Defendant on All Issues. — Although there was no trial of the issue made on a motion to suppress evidence procured by arresting officers, where the trial of the general issue was by the court, a finding of guilt amounted to a finding against the defendant on all the issues raised, by motion or otherwise. p. 565.
3. INTOXICATING LIQUORS — Search of Automobile — Reasonable and Probable Cause — Evidence, Including Smell of Liquor, Held Sufficient. — Where police officers had information from the chief of police that some one in a car bearing a license number from the south part of the state would be through the city with liquor, and officers thereafter saw defendant's heavily loaded car parked in their city bearing such a number, and, on approaching the car, saw a jug therein partly uncovered, and directed the occupants, including the defendant, to get out, and smelled the odor of intoxicating liquor as soon as the door was opened, such officers had reasonable and probable cause for searching the automobile. p. 566.
4. SEARCHES AND SEIZURES — Information from Informer — Who Received his Information from Another — Not Incredible. — The fact that the information received by police officers upon which they began to look for defendant, who was reported to be unlawfully transporting intoxicating liquor in an automobile, came to them through the medium of an informer, who received his information from another, does not render such information incredible. p. 567.
5. SEARCHES AND SEIZURES — Probable Cause — Rule of Hearsay Evidence Not Applicable. — The general rule against the admission of hearsay evidence is not applied in inquiries into the existence of probable cause for issuing a search warrant or making a search. p. 567.
6. SEARCHES AND SEIZURES — Cause for Search — Anonymous Information Insufficient — But May be Sufficient to Start Inquiry. — Even anonymous information, although not alone sufficient to constitute probable cause for a search, may be sufficient to set in motion an inquiry by police officers. p. 568.
7. SEARCHES AND SEIZURES — Search of Automobile — Information Constituting Probable Cause. — When, in addition to information received by police officers, they have, by the exercise of their own senses, obtained information creating the belief that an automobile or other vehicle contains intoxicating liquor or other contraband articles, probable cause then exists for the search of such vehicle without a warrant ( Batts v. State, 194 Ind. 609, 144 N.E. 23; Eiler v. State, 196 Ind. 562, 149 N.E. 62; Boyd v. State, 198 Ind. 55, 152 N.E. 278, distinguished). p. 568.
From Monroe Circuit Court; James B. Wilson, Special Judge.
Grover Hinds was convicted of the felonious transportation of intoxicating liquor in an automobile, and he appealed. Affirmed.
Frank S. Houston, for appellant.
James M. Ogden, Attorney-General, and Merl M. Wall, Deputy Attorney-General, for the State.
Appellant was charged by affidavit with the felonious transportation of intoxicating liquor in an automobile in violation of Acts 1925, ch. 48, § 7, § 2720 Burns 1926. He was tried by the court, found guilty, fined $25, and sentenced to the Indiana State Prison for not less than one nor more than two years. The automobile in which he was transporting intoxicating liquor was ordered sold and the proceeds applied as provided by law.
The alleged error assigned is the overruling of appellant's motion for a new trial. This motion contains 19 reasons, but it is difficult to determine from the abstract propositions of law announced in appellant's "Points and Authorities" (without making any application thereof) what particular actions of the court appellant contends should entitle him to a new trial.
No error can be predicated on the action of the court in "refusing to permit the defendant to withdraw his plea of not guilty hereinbefore entered for the purpose of filing a 1. written verified motion to suppress all evidence . . . discovered by the arresting officers," since there is nothing in the record to show that appellant offered any evidence in support of the motion to withdraw his plea in bar, or what the evidence was, if any was offered. See Eshelman v. State (1930), ante 475, 169 N.E. 861. Likewise, no error can be predicated on the action of the court in refusing "to permit the defendant to withdraw his plea of not guilty . . . for the purpose of filing a written verified motion to quash the search warrant herein issued and the return thereof and to suppress and reject all evidence," etc., for the reason just given. It is also noted that, upon the trial, no search was shown to have been made under a search warrant, and no search warrant, return thereto, or evidence secured thereunder, was offered or received in evidence.
As a reason to support his motion for a new trial, appellant contended that the court's "failing and refusing to hold or have a hearing on the issue joined by the filing of the motion 2. to suppress the evidence unlawfully procured by the arresting officers and the answer in general denial filed thereto by the State of Indiana" was error. It does not appear from the record, however, that appellant introduced or sought to introduce any evidence either on the issue referred to or on the general issue on his plea of not guilty. The cause was tried by the court and the general finding of the court amounted to a finding against the appellant on all the issues.
The only question involved in this appeal is whether the search of appellant's car, which revealed 16 gallons of whisky, was a lawful search. There was testimony that, 3. at the time of the arrest, appellant had parked his car in violation of a city ordinance, but the State cannot and does not here contend that the search is valid by reason of being incidental to an arrest for violation of the ordinance, since an arresting officer testified: "Q. What did you arrest them for? A. Transportation of liquor. Q. There has been a good deal said about the way this car was parked; you didn't arrest this defendant for having his car parked in any particular manner, did you? A. I did not."
The following facts proved at the trial show that the officers who arrested appellant for transporting intoxicating liquor and searched his automobile had reasonable and probable cause for making the search. The officers who made the arrest testified that they had information on December 19, 1928, from the chief of police that someone in a car bearing a license number from the south part of the state would be through (Bloomington) with 16 gallons of liquor that afternoon (evening) about 6 o'clock; that he was a friend of the Medlock boys and that one of the Medlocks would meet him at the Walter Yarling garage where he would probably stop first to deliver two gallons of whisky; the officers were given orders by their superiors to go to Yarling's garage and wait for such a car; the chief of police testified that he got his information "off a piece of paper handed to me by the prosecuting attorney" and that "Mr. Goodman also told me about the same description I got from the prosecutor"; the prosecuting attorney testified that James Goodman had told him there would be a carload of liquor coming to Bloomington and that the information came from a man named Larkin, who was informed by Delmar and Virgil Medlock (to whom a part of the liquor was to be delivered); officer Myers, on the day in question, saw appellant driving an automobile; appellant looked at him, "then looked in front real quick," and drove on; this officer reported to police headquarters what he had seen; officers Chambers and Robertson, who had been assigned to wait for the car, saw appellant sitting in his car in front of the Yarling garage about 7 p.m; the Medlock brothers were with him; the officers could see something in the car but could not tell exactly what it was; it looked like the back seat was full of something covered with a robe; the car was heavily loaded; it bore a license number from which the officers knew it came from the southern part of the state; these officers also called headquarters on the telephone; thereupon, they started back to where appellant's car was parked, but it pulled out and went up Third Street and parked near the Jordan sandwich shop at a 45-degree angle; when Officer Chambers approached appellant's car, he "saw a jug, partly uncovered in the car, and asked him if he was from Salem"; he told the occupants of the car to get out; the appellant got out on one side and the Medlock boys got out on the other; officer Robertson smelled the smell of intoxicating liquor as soon as the door was opened; the car contained 16 gallons of whisky.
The fact that the information received by the arresting officers upon which they began to look for appellant came to them through the medium of an informer who received his 4, 5. information from another, does not render such information incredible. The general rule against the admission of hearsay evidence has never been applied in inquiries into the existence of probable cause, Hanger v. State (1928), 199 Ind. 727, 160 N.E. 449; Gwinn v. State (1929), ante 420, 166 N.E. 769, and it manifestly would be impossible to enforce the law if it was necessary to provide the police officers who are sent out to make arrests with direct first-hand knowledge concerning all such matters.
Even anonymous information, although not alone sufficient to constitute probable cause for a search, United States v. Allen (1926), 16 F.2d 320, may be 6, 7. sufficient to set in motion an inquiry by the police officers, Faut v. State (1930), ante 322, 168 N.E. 124, and when, in addition to the information the officers have received, they, from the exercise of their own senses, have a belief reasonably arising out of the circumstances so known to them that an automobile or other vehicle contains that which by law is subject to seizure and destruction, probable cause then exists for the search without a warrant. Faut v. State, supra; Hanger v. State, supra; Greer v. State (1929), ante 386, 168 N.E. 581; Morgan v. State (1926), 197 Ind. 374, 151 N.E. 98; Carroll v. United States (1925), 267 U.S. 132, 45 Sup. Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790. The facts in this case clearly distinguish it from Boyd v. State (1926), 198 Ind. 55, 153 N.E. 278; Eiler v. State (1925), 196 Ind. 562, 149 N.E. 62; Batts v. State (1924), 194 Ind. 609, 144 N.E. 23, and Morgan v. State, supra, cited by appellant, where the court held that the officers had no reasonable and probable cause, but had merely suspicions on which to base their arrests.
Judgment affirmed.
Willoughby, J., concurs in the result.