Concurring Opinion
Lewis, C. J.The Court today passes on several questions which have been, and still are, of major concern in the area of criminal procedure relating to search and seizure under the Fourth Amendment of the Constitution of the United States. At the outset, it should be stated that the wide variance of opinion, as expressed in the majority, concurring and dissenting opinions, may in large measure stem from this Court’s efforts to stay abreast with the rapidly changing, and to say the least, chaotic uncertainty of the Constitutional dimensions for this field of law. Mr. Justice Harlan forecast such diversity of opinion in his concurrence in Ker v. California (1963), 374 U. S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726, where he characterized the lack of predictability of the recent Supreme Court decisions. It is interesting to note that his commentary was derived from that Court’s resolution of a very similar fact pattern as those presented on this appeal.
Both the majority opinion and dissent today state the essential issue in this case in a different manner. However, both opinions largely are concerned with the legality of the entry made onto the premises occupied by the appellant. The question is really whether the conduct of the police in perfecting an arrest of the appellant requires this Court to exclude from the evidence as presented in the trial over objections, a typewriter seized from that premises, thereby calling for a reversal of the judgment of guilty entered by the trial court.
In order to make a determination on this matter, there are three questions that must be answered;
*39First. Did the officers have probable cause to arrest the appellant?
Second. Did the officers have probable cause to enter the premises, and was that entry “reasonable?”
Third. Was the method of entry to that premises within the requirements of both Indiana statutory requirements and the requirement of “reasonableness” under the Fourth Amendment?
If these questions can all be answered in the affirmative, the decision of the trial court in overruling the appellant’s motion to suppress the typewriter from evidence must stand.
The Fourth Amendment of the United States Constitution requires that both searches and seizures (arrests) be made “reasonably” and with probable cause. It states:
“The right of the people to be secure in their persons, houses^ papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This right of privacy was not adopted solely for the protection of the criminal. Our Nation’s history prior to the adoption of the Bill of Rights does not reflect such a philosphy. There is little doubt that the Amendment stems from the desire of our founders that “Every man’s home be his Castle.” This protection extends to all citizens, whatever their position in life. To relax it in the administration of law enforcement would leave a mere “form of words.” [See Mapp v. Ohio (1960), 367 U. S. 643] Mr. Justice Frankfurter reflected:
“By the Bill of Rights the founders of this country subordinated police action to legal restraints, not in order to convenience the guilty but to protect the innocent. Nor did they provide that only the innocent may appeal to these safeguards. They knew too well that the successful prosecution of the guilty does not require jeopardy to the innocent. The knock at the door under the guise of a warrant of arrest for a venial or spurious offense was not unknown to *40them. . . .” United States v. Rabinowitz (1949), 339 U. S. 56, 82 (dissenting), 70 S. Ct. 430, 94 L. Ed. 653.
As a consequence, so that our society may exercise its cherished right of privacy in its legal pursuits, our law enforcement system must pursue its goals under what many may call a burden. Whether the requirements of the Fourth Amendment constitute a burden, or a hazard to the disrespectful, I am convinced that the activity of the police in the instant case fell within the Constitution’s permissable limits.
Historically, the devolopment of standards by which an arrest or search might legally be undertaken is complex. The primary guidance for all courts is, of course, the language of the Fourth Amendment itself. This language has, however, yielded to several stages of legal development and analysis by our highest Court. Before any resolution of the issues presented on this appeal can be made, there must be a clear understanding of the interpretations placed on the requirements of “reasonableness” and “probable cause” by the Supreme Court of the United States, which we are bound to follow. In 1947, five (5) members of that Court, speaking through Mr. Justice Murphy, formulated:
“It is a cardinal rule that in seizing goods and articles law enforcement agents must secure and use warrants wherever reasonably practicable. . . .” (emphasis added) Trupiano v. United States (1947), 334 U. S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663.
The same test of “practicality” was applied by that Court to the law of arrest. By 1949, however, this standard was rejected by the Court in United States v. Rabinowitz, supra. The Court reinstated the Constitutional test of reasonableness, overruling any case law which suggested the theory that a warrant was an equivalent to reasonableness.
“It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it *41is practicable to procure one. The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. . . .” Rabinowitz, supra.
In a dissenting opinion, stating what is now influencing the Court, Mr. Justice Frankfurter argued that only “necessity” would waive the requirement for a warrant. He said:
“. . . The exception may in part be a surviving incident of the historic role of the ‘hue and cry’ in early Anglo-Saxon law. ... Its basic roots, however, lie in necessity. What is necessity? Why is search (without a warrant) permitted? For two reasons: first, in order to protect the arresting officer and to deprive the prisoner of a potential means of escape, Closson v. Morrison, 47 N. H. 482, and second, to avoid destruction of the evidence by the arrested person. . . .” Rabinowitz, supra.
There is little doubt that the pendulum of the Court has swung back from the majority position of the Rabinowitz Court to a position that sounds in, if not requires, “necessity.” A primary exámple of this reverse shift is illustrated in the Court’s resolution of an appeal on the Constitutionality of required blood tests where no warrant was acquired. The Court stated:
“Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of the petitioner’s blood for alcohol, the question remains whether the officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned. . . .” Schmerber v. California (1966), 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908. (emphasis added)
Schmerber, supra, however, was rendered on the basis of the bodily intrusion, which, as the case indicates, may have limited this language to such a situation.
*42Recent stop-and-frisk decisions, Terry v. Ohio (1968), 392 U. S. 1, 88 S. Ct. 1868, and Sibron v. New York (1968), 392 U. S. 40; Peters v. New York (1968), 88 S. Ct. 1889, indicate that the philosophy of Jones v. United States (1950), 357 U. S. 493, 78 S. Ct. 1253, 2 L. Ed. 2d 1514, otherwise remains largely unfettered. Jones, supra, propounded:
. . The exceptions to the rule that a search must rest upon a search warrant have been jealously and carefully drawn, and search incident to a valid arrest is among them. . .
It is clear that the stop-and-frisk decisions are founded on the “necessity” of the protection of an officer. Limited searches of the person are permitted if the officer shows a reasonable belief that a “suspect” he has confronted is or may be armed with a dangerous weapon. It is noteworthy that this intrusion of the privacy of the person is sanctioned on something less than probable cause for arrest. The indication seems to be that the realities of police enforcement call for the courts to relax the stringency of the “exigency” or “emergency” doctrine.
In the instant case the sighting of the typewriter was made as the police officers entered the back screened porch of the appellant’s father’s home. The recent decision of Sabbath v. United States (1968), 320 U. S. 219, 88 S. Ct. 1755, confirms that the opening of the screen door was a “breaking” (as correctly developed in today’s dissent). Consequently, there was an entry, and for the admission of that typewriter to stand, we must determine whether the arrest made by the police was on “probable cause” and whether the entry under the circumstances was “reasonable.” See Henry v. United States (1959), 361 U. S. 98.
Before resolving this issue, it is incumbent that this Court be clear as to what today constitutes “probable cause.” Its development, no less than that of “reasonableness,” is control*43ling in resolving the issues we face. Probable cause has never been susceptible to a specific definition.
“. . . It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion . . . though an arresting officer need not have in hand evidence which would suffice to convict. . . .” Wong Sun v. U. S. (1963), 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441.
“In dealing with probable cause ... as. the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. U. S. (1949), 338 U. S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879.
“Probable cause exists where: ‘the facts and circumstances within [the arresting officers’] knowledge of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. . . .” Draper v. U. S. (1959), 358 U. S. 307, 313, 79 S. Ct. 329, 3 L. Ed. 2d 327. See also: Husty v. U. S. (1931), 282 U. S. 694, 700-701, 51 S. Ct. 240, 74 A.L.R. 1407, 75 L. Ed. 629, Dumbra v. U. S. (1925), 268 U. S. 435, 441, 45 S. Ct. 546, 69 L. Ed. 1032.
The question then, is: First. Did the officers have probable cause to arrest the appellant? The facts of this case indicate that a man of reasonable caution would have concluded that the appellant (i.e. the man who was seen running with two others from the burglarized store with a typewriter at 6:30 in the morning) was guilty of a felony. There is no indication that the eye witnesses were less than credible. The officers were aware that a felony was committed at the time of the sighting. The conduct and suspicious location of the appellant when he was seen by the several eye witnesses was clearly more than “suspicious.” There is no reason presented anywhere in the record before this Court, or under the law of this country, that we might employ to hold that the trial court was in error when it ruled that probable cause was present. In fact, the decision appears entirely correct.
The question then (Second.) is: Did the officers have prob*44able cause to enter the premises? This, of course, is predicated on probable cause for the arrest. But, there must also have been probable cause to place the appellant in the house entered. From the testimony of the officers as to the report made by the eye witnesses, which indicated that the appellant was seen going behind the house with the typewriter, appeared again in front of the house sans typewriter, and then ran around behind it again, and from the testimony relating to the physical layout of the neighborhood, this Court should not, and cannot on this evidence, overrule the trial court decision in this matter. A reasonable man under the circumstances could have placed the appellant in the house (the fact that the judgment was correct lends support to this decision on the part of trained law officers as to the conduct of fleeing criminals). In light of the development of “reasonableness” as set out above, the question is really whether there was some sort of an emergency which would justify the entry into the house without a warrant for a search.
Judge Mote states that the circumstances of this case indicate that the officers were in “fresh pursuit” of the appellant. This, by necessity, entails two considerations:
First. Was the time span here before the arrival of the police within the Constitutional limits under the doctrine of “fresh or hot pursuit” (depending on the preferred label) ?
Second. If so, does fresh pursuit measure up as a neces- ‘ sity for compliance with the Fourth Amendment’s requirements of “reasonableness?”
It is my opinion that both of these questions are answered affirmatively in Warden v. Hayden (1967), 387 U. S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782. In that case the Supreme Court characterized the activity of the police as “fresh pursuit.” The police arrived at the scene of a reported fleeing armed-robber about 5-to-10 minutes after the report was made by a taxi-cab driver. The felon was seen entering a house. The police initiated a search of the house, which encompassed a *45room-to-room search and took approximately 5-to-10 minutes before the arrest was perfected. The entry of the police (apparently not by voluntary consent) was held by the Court to be within the limitations of the Fourth Amendment because of the emergency of the situation. Following that precedent (which was favorably cited in the recent stop-and-frisk .case: Terry v. Ohio, supra), I must conclude that the officers acted on probable cause and with reasonableness in the instant case when they entered the house to perfect the arrest of the appellant. To hold otherwise would be to penalize rapid and efficient police response, and rob police enforcement of a valuable right. (These considerations are especially valid in light of the Terry, supra, holding.)
The final question presented by this case falls within the requirements of both the Fourth Amendment and Burns’ Indiana Statutes Anno., (1956 Repl.), § 9-1009, which provides :
“To make an arrest in criminal actions the officer may break open any outer or inner window of a dwelling house or any other building to execute a warrant, if, after notice of his authority and purpose, he be refused admittance.
This statute sets out the applicable standard for police entry to arrest when a warrant for the arrest has been procured. The dissent today asserts that this statute should be applied with equal vigor when a warrant is not acquired. This is indeed suggested in Sabbath, supra. However, the Supreme Court expressly reserved the question as to whether the requirement of “announcement” was as stringent in “exigent” circumstances. Therefore, to that issue, we must resolve on first impression.
It must be pointed out that the cases cited in the dissent today are federal interpretations of a similar statute passed by Congress. Because the statutes are similar, does not, however, sustain the proposition that the federal cases are con*46trolling precedent for this State. Miller v. United States (1958), 357 U. S. 301, 309, 78 S. Ct. 1190, 2 L. Ed. 2d 1332, was until Ker v. California, supra, the leading case in the area of “announcement before entry.” Miller was, though, an interpretation of the Court under its rule-making power for the federal enforcement bodies, and does not stand as the minimal requirement of reasonableness under the Fourth Amendment. This is not to say that the Fourth’s requirement is inapplicable to the methods of entry employed by a state’s police officers. That question has yet to be expressly decided by the Supreme Court. Both Miller, supra, and Ker, supra, do indicate with some preciseness that some minimal standard does apply. Mr. Justice Clark in Ker, supra, recognized the distinction between the exclusionary rule when it is founded on the Constitution itself rather than the supervisory power of the Court. He pointed out that, although the “same fundamental criteria” had to govern both state and federal enforcement, the states were free to adopt “workable rules” governing methods of arrests and searches. These rules are subject to that Constitutional minimum, which includes the variances created by the exigencies that arise in any particular case. In Ker, supra, the arresting officers failed to give advance warning of entry out of fear that narcotics would be destroyed before they could perfect the arrests.
The dissent today urges that the trial court decision be reversed because the arresting officiers failed to fully identify themselves and their mission before they forcefully entered the premises occupied by the appellant. While they recognize that there are certain exceptions to the “announcement” requirement, fresh pursuit is not among their listings. Mr. Justice Clark indicated, at page 27 of the opinion Ker, supra, that one of the reasons the Court found a probable-cause exception, thereby legitimizing the unannounced entry of the police, was the prior furtive conduct of the suspects, which could have reasonably led the police to believe that they were expected. From the conduct of the petitioners in that case, *47it is difficult to rationalize the conduct of the appellant in the instant case as any less than furtive.
There are considerations which face this Court under this question which are more important, however, than merely discovering whether a case in point exists on which to rest this opinion. (Indiana has only scarcely discussed the problem.) Judge Learned Hand pointed out that when you are dealing with such admonitions as “unreasonable searches,” there appears to be no escape in each situation from balancing the conflicting interests at stake with as detached a temper as we can achieve. Hand, The Spirit of Liberty, page 179 (Dillard, 3rd Ed. 1960). It is this balancing of interests between the right of the individual with the right of the state which we must pursue. It is my opinion that the danger of unjust and unwarranted invasions into the privacy of the individual under the circumstances of this case are slight. The danger that this Court, in writing new law, will effectively place another technical legal barrier to an already overburdened law enforcement system is great. And, the legal precedent and rationale are in favor of a resolution affirming the lower court’s decision, and for that matter, the conduct of the officers involved.
As pointed out in the exhaustive study on the “announcement” law in this country by G. Robert Blakely, 112 U. Pa. L. R. 449 (1964), the highest frequency of violation by the police of the announcement requirements occurs in gambling and narcotics arrests. He points out that this is regretable because this is an area where surprise is an almost indispensable element of effective apprehension of the contraband. The growing involvement of organized crime in this area adds to the problem. I am not suggesting that this Court unleash the police from responsibilities they must bear under the State and Federal Constitutions. However, the Constitution calls only for “reasonableness” in the method of entry, and I think that this Court in great wisdom today does the same. This balancing of interests is reflected in the Supreme Court’s *48recent pronouncements on the stop-and-frisk laws. The Supreme Court of Massachusetts in Howe v. Butterfield (1849), 58 Mass. (4 Cush.) 302, called for no less when they ruled that notice of authority and purpose was not necessary when no one was evidently present or within hearing. The officers here, it is significant to note in light of that decision, knocked at the front and back doors and received absolutely no reply. This Court, in one of the few decisions rendered on this subject, ruled that there was no violation of Burns’ § 9-1009, supra, where the door was, in the reasonable belief of the police, locked by the suspect to slow the police in their entry. See Schreiber v. State (1928), 201 Ind. 37, 164 N. E. 2d 258. This may have been reasonably within the contemplation of the police in this present case, especially in light of the fact that the police arrived on the scene so quickly, and the suspects, by feigning sleep, indicated that they knew very well who was at the door.
It should be pointed out that the Supreme Court has held in Peters v. New York, supra, that where an officer has probable cause for an arrest, he may entertain the presumption that the prisoner may be armed with a dangerous weapon. The Court through the long history of dispute over searches incident to a legal arrest has never doubted that an officer may search a felony suspect for weapons. Can this Court deny all logic and not allow the police to reasonably protect themselves while in fresh pursuit of fleeing felons to presume the felon armed and dangerous? If in good reason under such a circumstance we allow the police this practical consideration in light of the threat of the rising crime rate, then it becomes apparent that the officers in the instant case were availed of one of the “emergencies” listed by the dissent in the instant case. ; i ; : , ,
It must be frankly stated that the case law outside this jurisdiction takes every position that is imaginable. Most states, however, make many exceptions to the statutes con*49trolling “announcement” that go far beyond the scope of the circumstances of this case. See Blakely, footnote 84, supra.
“Fresh pursuit” stands as one of the few exceptions to the warrant requirement of the Fourth Amendment. No compelling reason is presented in any case law surveyed, or in the dissenting opinion today, why this Court should apply a more stringent standard for the method of entry employed by police than we do to the right of the police officer to enter without a warrant. It is clear that the recent Supreme Court decisions require a higher showing of probable cause to justify a,n intrusion without a warrant. But, it is inherent in the nature of those exceptions that exceptions to the “announcement” statutes also be sanctioned. I think it significant to note that in the recent Sabbath decision, supra, the Court expressly reserved consideration as to whether exigent circumstances would excuse compliance with the Federal “announcement” rule. This variance in application is rendered even more reasonable from the fact that the legislature mentioned only arrests with warrants in Burns’ § 9-1009, supra.
It is in light of these considerations that I concur with the majority in today’s decision. I feel that this concurring opinion is in part guided by the philosophy expressed by Professor Freund:
“What gives concern ... is ... a tendency to make broad principles do service for specific problems that call for differentiation, a tendency toward overbroadness that is not an augury of enduring work and that misses the opportunity to use the litigation process for the refinement and adaptation of principle to meet the variety of concrete issues as they are presented in a lawsuit. . . . The law of the future is likely to be the law that earns its perdurance by solidity and strength of workmanship no less than by the appeal its results make to our ethical sense.” Freund, The Supreme Court of the United States, page 188, (Meridian Ed. 1961).
Arterburn, J., concurs in this opinion also.