Dissenting Opinion
Jackson, J.I dissent from the majority opinion for the following reasons:
1. The search, seizure and arrest were made in this case without any warrant and not on view. The consequent incarceration of the defendant from January 24, 1958, to January 27, 1958, without being charged with the commission of a crime, while technically not before this court due to the failure of trial counsel to properly save the question, is actually before us in that pauper counsel calls the court’s attention to the denial of the defendant’s constitutional rights in his brief, and the transcript clearly shows such denial. It is my belief that constitutional rights take priority over technical rules, and the flagrant abuse of the defendant’s constitutional rights in this case vitiates the entire proceedings. Suter v. State (1949), 227 Ind. 648, 88 N. E. 2d 886.
2. The facts, as shown by the record, disclose that the officers received information (or a tip) from a Mrs. St. John about two o’clock p.m. on January 24, 1958. Acting thereon the officers went immediately to the abode of the defendant and failing to find anyone at home, they returned to the police station. Sometime after five o’clock p.m., they received word from one of the neighbors that the defendant had returned. Immediately the police returned to defendant’s home, arrested him and took him first to the police station and then delivered him into the custody of the Sheriff of Clay County, Indiana, who placed the defendant in jail about ten o’clock p.m. of said day.
*533. The further facts shown by the record are that there was a city courtroom 20 to 25 feet from the interrogation room in the police station, an office of a Justice of the Peace just across the street and the office of another Justice of the Peace a block and a half from the City Hall.
4. During the time the officers waited at the police station for the defendant to return to his home, they could easily have obtained a warrant for the arrest of the defendant, a search warrant to search the premises, or both. In any event their actions here were reprehensible for here were men who had taken their solemn oath to support and defend the Constitution of the State of Indiana and of the United States and to enforce the law; yet they deliberately deprived the defendant of one of the most basic rights guaranteed by the Constitution. Constitution of Indiana, Article 1, §11; Suter v. State (1949), 227 Ind. 648, 88 N. E. 2d 386, supra.
If we overlook this violation of the defendant's constitutional rights and approve of the illegal confinement for a period of three days, by the same logic, a person could be held in jail three weeks, three months or three years without a warrant or without being charged with the commission of any crime.
I hold no brief and have no sympathy for criminals, but a denial of basic constitutional rights to the worst of them paves the way for the obliteration of those rights of all of us.
The judgment of the trial court should be reversed, and the cause remanded for a new trial with instructions to suppress the evidence.
Note. — Reported in 159 N. E. 2d 393.