Dissenting Opinion
JACKSON, J.I am unable to agree with the majority opinion herein and dissent thereto.
*463The majority opinion correctly points out that “The basic, underlying question involved in this appeal is whether Appellant was lawfully arrested.” The majority of the court is of the opinion that the arrest was lawful and that the motion to suppress the evidence was properly overruled; therefore, all of the evidence admitted by the court was proper and competent. It is to this facet of the case that this dissent is directed.
First let us refer to the Verified Motion to Suppress and Eeject Evidence, which, omitting formal parts, reads as follows, to-wit:
“Comes now the defendant in the above entitled cause, by counsel, and respectfully moves the Court to suppress, reject and exclude any and all evidence in said cause, and any and all exhibits offered in evidence in said cause, obtained and seized at the time of the defendant’s arrest, and to reject and disregard the same, on the following grounds and for the following reasons, to-wit:
(a) That at the time defendant was arrested and searched, the arresting officers—
1. Did not see defendant commit any misdemeanor in their view; and
2. The arresting officers did not have a warrant for the arrest of defendant or a search warrant for his person; and
3. The arresting officers did not have reasonable and probable cause to believe that defendant had committed a crime, and the arresting officers were not in pursuit of a felon and did not have reasonable grounds to believe or anticipate that a felony had been committed or was being committed in the immediate area or surrounding neighborhood where defendant was arrested, and the appearance, presence and description of defendant did not in any manner coincide with or bear any striking similarity to any facts or circumstances that might or could have given rise to reasonable belief that defendant was either connected with the commission of a felony, or that he was a felon whom they were in pursuit of or that he was a felon whose description bore a likeness to, or was confusingly similar to that of a known felon; and there was a total absence of reasonable and probable cause to believe that defendant had committed a felony.
*4644. The constitutional rights of the defendant herein were violated in that he was illegally searched at the time of said illegal arrest and the result of said illegal search resulted in the seizure of certain articles and personal property, all of which was the result of said illegal search which was in direct violation of and contravention of his constitutional rights with reference to the due process clause and equal protection clause of the 4th and the 14th Amendment of the Constitution of the United States, and the applicable provisions of the Indiana Constitution.
WHEREFORE, defendant, Frank Wagner, respectfully prays this Honorable Court that the arrest of defendant and the subsequent search of defendant be declared illegal, null and void, and that the resulting seizure of said personal property from defendant’s person be therefore declared null and void, and of no force and effect, and that the same be suppressed and rejected in evidence, and that the same be ruled to be incompetent for reason of the illegal arrest and subsequent illegal seizure of same and for all other further, proper and complete relief in the premises.”
The arresting officer, Sgt. William Owen, readily admitted that at the time he arrested the appellant herein he did not have a warrant for his arrest and that the appellant did not commit any law violation in his presence. Sgt. Owen stated that at the time of the arrest, he did not know whether or not the appellant had heroin. He testified he personally knew of no facts that would be grounds for the arrest of appellant.
The officer attempted to justify the arrest without warrant and without having seen any law violation on the part of the appellant by stating that he did not have time to procure a warrant after his “reliable informant,” Ronald Dennis, advised him of the sale of heroin by the appellant. Yet this same officer testified that two of his “reliable informants,” Manuel Simms who was a junkie and Ronald Dennis who has a record of some length as shown by the record herein, told him approximately three days before he arrested the appellant that appellant was peddling heroin. Are we to assume the two “reliable informants” were less reliable approximately three days before the arrest in the case at bar? Was the in*465formant Ronald Dennis more reliable on the day the arrest was made without warrant than the two were three days before such arrest?
William Owen, the policeman, testified that the pictures and records set out in Defendant’s Exhibits “A,” “B,” “C” and “D” pertain to and were the records of Ronald Dennis, the same person he had identified in his previous testimony. Copies of above Exhibits “C” and “D” are appended hereto, and made part hereof.
I deem it unnecessary to further belabor the situation apparent in this case. The “reliable informer” of years standing has been the stoolie of the arresting officer for 4 or 5 years according to the officer’s sworn testimony. The stoolie’s record is unsavory, to say the least, having been convicted of the illegal sale of narcotics in the District Federal Court and sentenced to twenty years (Ex. C). His other record (Ex. D) does not help the case or the reliability of the informant.
Further, in my opinion, the court committed reversible error in denying the motion to suppress the evidence. The cause should be reversed and remanded with instructions to grant the defendant’s motion for a new trial and to suppress the evidence.
APPENDIX
DEFENDANT’S EXHIBIT C
ADD 608292 C CHIEF OF POLICE DEC. 26 1962
NARCOTIC CASE COURT DISPOSITION
ATTENTION: JONES RA AND OWENS WE
ON 12/19/62 IN FEDERAL COURT JUDGE STECKLER PRESIDING, RONALD KENT DENNIS COL/24 OF 2120 HIGHLAND PLACE ENTERED A PLEA OF GUILTY TO VIOLATION OF SECTION 26 US CODE 4705 UNLAWFUL SALE OF NARCOTICS AND WAS SENTENCED TO 20 *466YEARS FEDERAL PENITENTIARY TERRE HAUTE IND. THIS SENTENCE IS SUBJECT TO ADJUSTMENT AFTER 90 DAYS THIS IS FINAL COURT DISPOSITION.
DET SGT JONES RA
WRITTEN 8:35 AM JONES SL
APPENDIX
DEFENDANT'S EXHIBIT D
INDIANAPOLIS POLICE DEPARTMENT CRIMINAL HISTORY NAME RONALD KENT DENNIS I.P.D. #131345 I.S.P. #142719 F.B.I. #47 570 C
CASE NUMBER DATE OFFENSE DISPOSITION DATE
19/ L 32 000 13 I 12 OMO
396307 B 9/13/55 2nd Deg Burg 1 yr ISF 9/15/55
ISF Green-castle Ind. 9/16/55 2nd Deg Burg 1 yr
51585-C 8/8/56 POP $5 , 8/30/56
119789-0 4/1/57 Pre Burg Nolle 4/8/57
1/17/68 False Registration _Appealed Bond Forf. $100 & C 30 das MCJ 3/6/58 2/11/58
1/17/58 Entering room of opp sex $25 & C 30 das MCJ 2/11/58
1/17/58 DOC No Aft 2/11/58
207910-0 5/13/58 Grand Larc. Capias Red to PL $1 & C 1 yr ISF 7/24/58
352174-0 2/10/60 DOC $1 & C 10 das MCJ 2/11/60
390466-0 7/23/60 Pre Larc. 7/29/60
390466-0 7/29/60 Grand Larc. BOCC ISF GP to PL $100 , ; C 6 tops. 2/21/62
467195 5/21/61 Pre 3rd Deg Burg Nolle 5/22/61
162848-C 5/22/61 Viol Muffler Law
490224-0 8/20/61 Drank No Aff 8/21/61
490224-C 8/20/61 POP $10 & C 2 das MCJ 8/21/61
577319 O 8/14/62 Pre. Burglary No Affd. 8/15/62
See Reverse Side
Note. — Reported in 233 N. E. 2d 236.