Concurring and Dissenting Opinion
DeBruler, C. J.I concur with the majority in its determination that the arresting officers here had reasonable and probable cause to believe that the appellant entered the jail in the possession of narcotics and thus was in process of committing a felony. The officers received the final and necessary corroborating factor, giving them this cause to believe at the moment when the appellant arrived at the jail and sought to visit with the prisoner.
*471I further agree with the majority that this was a valid search incident to a lawful arrest and the motion to suppress the contraband seized in that search was properly overruled. However, I do not agree that the need of the police to maintain security in the jails and prisons and the need to prohibit the traffic in contraband, should be considered as one of the factors in determining whether there was reasonable and probable cause to believe that appellant was committing a felony,- and to arrest him.
The needs of the authorities can only support a policy of searching persons seeking to visit prisoners as a condition to such a visit. However, the visitors have a right to refuse such a search and thus forego their visitation privilege. This case does not involve contraband seized while carrying out such a policy.
I dissent from the majority wherein it holds that the merits of this appeal are not properly before this court for determination. The appellant filed the following motion for a new trial:
“Comes now the defendant and moves the Court for a new trial in the captioned cause for the reason that the Court’s finding was contrary to law in the following particular :
(a) The Court erred in overruling and denying the ‘Motion to Suppress and Reject’ filed herein and thereafter admitting such evidence against the defendant.
MEMORANDUM
The arrest and subsequent search of the defendant was illegal and the evidence obtained thereby was improperly admitted.
There was no apparent or overt law violation at the time of the arrest and no testimony was adduced which would in any manner provide a reliability test to the information source upon which the arresting officer relied.
Unless the officers had reasonable or probable cause for arresting the defendant, the arrest was illegal and the evidence obtained incidental thereto was not admissible.
*472Enlow v. State, 1955, 234 Indiana 156, 125 N. E. 2nd 250; Eiler v. State, 1925, 196 Indiana 596, 149 N. E. 62; Morgan v. State, 1926, 197 Indiana 374, 151 N. E. 98; Boyd v. State, 189 Indiana 55, 152 N. E. 278; Edwards v. State, 198 Indiana 170, 152 N. E. 721.”
I can see no legitimate end to be served by the existence of a rule of procedure which requires that the appellant, seeking a review of a ruling on a motion to suppress evidence obtained in violation of the constitutional rights of the appellant, must allege this error in his motion for new trial under the first section of Burns’ Ind. Stat. Ann. § 9-1903 and may not raise it under the ninth section of that statute.
In my opinion, Hamilton v. State (1934), 207 Ind. 97, 190 N. E. 870 does not justify the rule enunciated by the majority. That case stands for the proposition that the trial judge must be given an opportunity to correct errors as a condition precedent to their being considered by this Court on appeal. In this case, as can be readily seen from appellant’s motion for new trial, the trial judge was amply informed of the error being urged by appellant together with his supporting argument. I believe that the appellant in raising this error under the contrary to law allegation has applied the ordinary meaning of the phrase contrary to law, and in my opinion, in the absence of a specific statement in the statute to the contrary, nothing more should be required by a procedural rule or statute.
NOTE.—Reported in 250 N. E. 2d 368.