concurring in result.
Since the question of the legality of appellant's arrest and the seizure of his clothing was available upon direct appeal, through trial counsel's objection and the ruling of the court thereon, I concur in the majority position that the question will not be considered in a post-conviction action.
However, the majority does briefly address the merits of appellant's claim and states "[i]t is apparent from the evidence in this case that the police officers had probable cause to effect an arrest of appellant, and that exigent circumstances existed obviating any necessity for a writ". It is elementary that a showing of exigent circumstances in addition to probable cause is necessary for a warrantless in-home arrest of a suspect. Banks v. State (1976), 265 Ind. 71, 351 N.E.2d 4; Stuck v. State (1970), 255 Ind. 350, 264 N.E.2d 611; Mowrer v. State (1983), Ind.App., 447 N.E.2d 1129; Harrison v. State (1981), Ind.App., 424 N.E.2d 1065; Britt v. State (1979), 182 Ind.App., 546, 395 N.E.2d 859. There was no showing of exigent circumstances in this case.
° The murder occurred on August 15, 1977. The officers learned of appellant's apparent involvement at 10:10 p.m. on August 18, 1977, and arrested him in his home at 4:30 a.m. the next morning, without a warrant. No testimony was presented to indicate the police could not have kept the house under surveillance until an arrest warrant could be obtained or that other exigent circumstances existed permitting arrest without a warrant. Appellant was 17 years old, living with foster parents and had no money or transportation. The officers waited six hours after learning of appellant's involvement and the fact that no judge was available between 10:10 p.m. and 4:80 a.m. is not sufficient to qualify as an exigent cireumstance. The exception to the warrant requirement cannot be supported by a simple statement that appellant might leave town. Surveillance would eliminate this risk until an arrest warrant could be obtained.
This argument was available on direct appeal and is consequently waived by the failure to raise the issue. Further, an unlawful or invalid arrest is not a defense to being convicted of the offense charged. Denson v. State (1975), 268 Ind. 315, 330 N.E.2d 784; Martin v. State (1978), 176 Ind.App. 99, 374 N.E.2d 543. The clothing taken at the time of the arrest was not admitted into evidence and error at trial by reference to that clothing was waived when not raised on direct appeal.
DICKSON, J., concurs.