Dissenting Opinion
DeBruler, J.I dissent in this case because I do not believe that there was evidence from which the trier of fact could reasonably infer beyond a reasonable doubt that the appellant possessed and dispensed the narcotic in this case. Even assuming that the officer’s testimony concerning what he saw was not incredible as a matter of law, there is a complete lack of evidence as to who possessed or had the narcotic under *258control prior to the time that the appellant handed the envelope to the passenger. The officers testified that they saw the envelope pass from one hand to the other and nothing else. It is not an uncommon gesture for one remaining in a car to hand a passenger an article as he leaves, an article which has perhaps been inadvertently left on the seat. This gesture is surely not enough to support a conviction of sale or dispensing of narcotic drugs.
To illuminate this problem, suppose that an officer turns a corner and sees A handing an envelope to B a short distance away, and suppose that the envelope contains a narcotic. Suppose further that A is charged with the giving or selling of narcotics and the sole evidence at the trial is what the officer saw coupled with B’s testimony that he had just dropped the envelope and A had picked it up and was just handing it to him when the officer rounded the corner. Is this evidence sufficient to convict A of the crime charged? I think not. The presumption of innocence and the heavy burden of proof that the State is put to in a criminal case is, in my opinion, aimed at preventing such a result. We can guess and hypothesize about just what happened in the above scenario and speculate on whether or not we think B is telling the truth, but we cannot convict and sentence a man to up to twenty years in prison on the basis of what we think might really have happened. Just as a police officer needs articulable facts concerning his feelings that he has probable cause to arrest a suspect, Terry v. Ohio (1968), 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889, so do we demand objective evidence of the charged crime. In our hypothetical above, as in the actual cases before us, there are no such articulable facts to support the inferences needed to support the conviction.
We do not here question the good faith of the officer, or question his knowledge of the situation which might lead him to be certain what in fact was taking place. Informal hearsay and a well-developed “street sense” are important tools in law enforcement, but they cannot take the place of *259objective evidence at the time of trial. As we have often pointed out a verdict based “upon suspicion, opportunity, probability, conjecture, or unreasonable inferences of guilt gleaned from vague evidence” cannot stand. Durham v. State (1968), 250 Ind. 555, 238 N. E. 2d 9, 13; Manlove v. State (1968), 250 Ind. 70, 232 N. E. 2d 874.
If we make the assumption that evidence of the appellant’s flight is an indicia of guilt, the question in this case becomes, whose guilt? In Alberty v. U.S. (1895), 162 U.S. 499, 511, 16 S. Ct. 864, 868, 40 L. Ed. 1051, the Supreme Court stated that:
“it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses.” (Quoted with approval in Wong Sun v. U.S. (1963), 371 U.S. 471, 83 S. Ct. 407, 415, 9 L. Ed. 2d 441, fn. 10)
If the narcotics belonged to the passenger, the flight means nothing as to this appellant. In short, we can solve the mystery of whose narcotics were found, as well as the mystery of who felt guilty and why, only if we can ascertain who brought the narcotics into the car and who possessed them. Lacking that knowledge, or any evidence from which we could infer that knowledge, we cannot say, nor could a trier of fact say, that the appellant was guilty of possessing or dispensing narcotics beyond a reasonable doubt.
The sole evidence on this point is that the officers saw the envelope in the appellant’s hand for a split second as he handed the envelope to the passenger. In my opinion this is not sufficient to support the inference that the appellant was the one who had brought the narcotic into the car or who controlled its disposition.
Note.—Reported in 286 N. E. 2d 401.