Dillon v. State

*420Concurring in Result

DeBruler, J.

Immediately prior to asking the appellant if he had Mrs. Killian’s checkbook and money, Chief Miller had knowledge of the following facts: appellant claimed to be a rug salesman attempting to sell Mrs. Killian a rug; Mrs. Killian claimed that she met appellant oh a street corner pursuant to instructions given to her on the phone by someone requesting her help in catching a check forger who had been tampering with her account; that appellant represented to Mrs. Killian that he was an FBI agent and showed her a gold badge; that appellant took Mrs. Killian’s checkbook and $1,500.00 cash representing to her that was part of the plan to clear up the problem with her account; Chief Miller had followed appellant since he left the coffee shop after receiving the checkbook and money and appellant had not disposed of either item. I believe this clearly gave Chief Miller the necessary probable cause to arrest appellant, and in fact appellant was a few minutes later taken into custody and transported to the police station. A limited search incident to this valid arrest was permissible if made contemporaneously with the arrest and if the probable cause to arrest was not based on the items seized in the search. Smith, v. State (1971), 256 Ind. 603, 271 N. E. 2d 133; Davis v. Mississippi (1969), 394 U. S. 721, 89 S. Ct. 1394; Preston v. U. S. (1964), 376 U. S. 364, 84 S. Ct. 881, 11 L. Ed 2d 777. This search was contemporaneous with the arrest and the items obtained were admissible in evidence.

After the police chief had the above information he asked appellant if he had Mrs. Killian’s checkbook and appellant said “here it is” at the same time giving the checkbook to Chief Miller. At the time Miller asked the question he had probable cause to arrest appellant for theft, and it is clear that appellant was not free to leave. Therefore, I believe appellant had been deprived of his freedom of action in a significant way and should have not been questioned until he had been advised of his constitutional rights under Miranda v. Arizona (1966), 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. The statements *421were clearly incriminating because they showed appellant had knowing possession of Mrs. Killian’s money and checkbook. It was trial court error to admit evidence of appellant’s response to Chief Miller’s question about whether appellant had Mrs. Killian’s checkbook and cash.

However, this error was harmless. The standard where a federal constitutional error is involved is that it is deemed harmless only if the appellate court can say “beyond a reasonable doubt the error complained of did not contribute to the verdict obtained.” Chapman v. Calif. (1967), 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705; Dillard v. State (Ind., October 26, 1971). That standard is met here. Appellant’s statement “here it is” was evidence that appellant knew he was in possession of Mrs. Killian’s money. There was overwhelming independent evidence of this. At all stages of the proceedings appellant consistently conceded he possessed her money as part of a rug sale transaction. The evidence of appellant’s statement could not have contributed to this verdict.

Hunter, J., concurs.

Note. — Reported in 275 N. E. 2d 312.