ILNews

Judges split over Fourth Amendment violation

Back to TopCommentsE-mailPrintBookmark and Share

Two of the three judges on an Indiana Court of Appeals panel affirmed the suppression of marijuana and a pipe found on a man during a traffic stop, with the dissenting judge believing there was no infringement on the man’s Fourth Amendment rights.

Huntingburg police officer Andrew Hammock pulled over Michael Cunningham’s car because one of the two tail lamps was white – instead of red – because the red lens covering was missing. Cunningham asked to get out of his vehicle to see the tail lamp for himself, to which Hammock said he would pat him down for any weapons for officer safety. Cunningham said that was fine and got out of the car. A pat down yielded a pill bottle, which Cunningham admitted had marijuana in it. He told the officer he had a pipe in his car.

Cunningham was charged with Class A misdemeanors possession of marijuana and possession of paraphernalia. He filed a motion to suppress the marijuana and pipe, which the trial court granted based on its finding that the initial traffic stop was illegal.

The Indiana Court of Appeals judges agreed in State of Indiana v. Michael E. Cunningham, 19A05-1310-CR-489, that the initial traffic stop was not illegal, as law requires vehicles like Cunningham’s to have two red-lighted tail lamps. But the court split on whether the search violated Cunningham’s Fourth Amendment rights.

The majority noted there was no evidence that Cunningham was hostile or threatening when he asked to get out of the car.

“We conclude that Officer Hammock clearly did not ask Cunningham for permission to conduct a pat-down search. Instead, Officer Hammock’s testimony demonstrates that he gave an ultimatum to Cunningham: if he decided to exit the vehicle to inspect the tail lamp, ‘I would pat him down for any weapons just for officer safety issue,’” Judge Michael Barnes wrote. “Phrased in this way, Cunningham had no choice but to submit to the pat-down when he exited the vehicle, despite the absence of reasonable suspicion that he was armed and dangerous.”

But the circumstances didn’t necessitate Cunningham exiting his vehicle, Judge Elaine Brown wrote in her dissent, so he did so with full knowledge that if he did leave his car, he would be subject to a pat down search. He agreed and even told the officer he had marijuana in the pill bottle, handed it to Hammock, and informed him about the pipe in the car. Under these circumstances, she wrote there is no violation of the Fourth Amendment.
 

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. Don't we have bigger issues to concern ourselves with?

  2. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  3. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  4. Different rules for different folks....

  5. I would strongly suggest anyone seeking mediation check the experience of the mediator. There are retired judges who decide to become mediators. Their training and experience is in making rulings which is not the point of mediation.

ADVERTISEMENT