ILNews

COA overturns drug conviction

Back to TopCommentsE-mailPrintBookmark and Share

Because there was no evidence presented as to why a defendant was stopped or that the state’s actions were reasonable, the Indiana Court of Appeals reversed a man’s conviction of misdemeanor possession of marijuana.

Herbert Yanez was at an Indianapolis flea market when he was stopped by Special Agent Rodriguez with the Immigration and Customs Enforcement Unit of the Department of Homeland Security. Rodriguez was part of an investigation looking for illegal immigrants who are gang members and for counterfeit items. After Rodriguez stopped Yanez, Indianapolis Metropolitan Police Officer Humerickhouse approached to assist. Yanez consented to a pat-down search, which revealed a baggie of marijuana sticking out of Yanez’s pants pocket.

Yanez sought to suppress the drug based on lack of a constitutional basis for the investigatory stop. The trial court denied the motion and found him guilty.

Addressing only the state constitutional grounds, the Court of Appeals found in Herbert Yanez v. State of Indiana, No. 49A02-1104-CR-362, that the state presented no evidence of a concern or suspicion that a violation of law had occurred. Rodriguez stopped Yanez, yet the agent did not testify at trial. Humerickhouse was the only witness for the state.

With regards to whether the state presented evidence that the officers’ actions were reasonable, the appellate court split. The majority found the evidence presented failed to establish the reasonableness of the state’s actions, but Judge Michael Barnes disagreed as to this point.

The question arises whether Rodriguez had “seized” Yanez when Humerickhouse approached him. But without Rodriguez’s testimony, the question can’t be answered.

“Although we can speculate that Yanez’s initial encounter with Agent Rodriguez might have been ‘consensual,’ as that word is defined by case law, I believe it was the State’s burden to establish that it was. Without Agent Rodiguez’s testimony, the State failed to meet that burden,” Barnes wrote.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

ADVERTISEMENT