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Canine sniff case gets second look, same ruling

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On a rehearing petition from the state, the Indiana Court of Appeals reaffirmed today its holding in reversing a conviction based on a traffic stop involving a canine sniff.

In Derrick Bush v. State of Indiana, No. 49A02-0907-CR-682, the state sought rehearing of the court’s April 27, 2010, ruling in which the court opined the state did not meet its burden of showing a traffic stop was not unreasonably prolonged or that there was an independent reasonable suspicion to justify the canine sniff. Derrick Bush was convicted of carrying a handgun without a license, a Class A misdemeanor. The state argued that Bush did not argue to the trial court that his detention was unreasonably prolonged and that his appellant’s brief did not address the duration of his detention or the legality of the canine sniff.

The appellate court granted rehearing to clarify procedural history and to address the state’s claim of waiver. Judge Margret Robb wrote that Bush repeatedly objected during the bench trial to the admission of evidence of the handgun and in his objections, he referred not only to the lack of reasonable suspicion but also to his detention. That, the court wrote, raised the issue of whether the detention was unreasonably prolonged, and the objection was sufficient to preserve the Fourth Amendment issue for appeal, including “the dual aspects of the duration of Bush’s detention and whether there was reasonable suspicion to expand the traffic stop by conducting a canine sniff. See Chest v. State, 922 N.E.2d 621, 624 (Ind. Ct. App. 2009).”

On appeal, Bush had argued the warrantless vehicle search violated the Fourth Amendment and Article 1, Section 11. Bush’s brief noted that based on Arizona v. Gant, 129 S. Ct. 1710 (2009), the exception for an automobile search incident to a recent occupant’s arrest was inapplicable to the present case. The state’s brief did not discuss Gant but said the applicable exception was probable cause as supplied by the positive alert of the drug-detecting dog, citing Illinois v. Caballes, 543 U.S. 405 (2005). Bush responded to this during arguments, noting the canine sniff of his vehicle occurred after the purpose of the traffic stop was complete and therefore was not reasonable under Caballes and all Indiana cases applying Caballes.

The State in its petition for rehearing points out that the appellate court cannot reverse on issues raised sua sponte unless the grounds for reversal constitute fundamental error. However, Judge Robb wrote, “… we do not regard the reasonableness of Bush’s detention and the canine sniff of his automobile as an issue raised sua sponte. The State, by not responding in its brief to Bush’s contentions regarding Gant and instead focusing its Fourth Amendment argument on the canine sniff as the basis for the warrantless search, impliedly consented to litigating this case on the grounds addressed in our original opinion. It is too late for the State to switch course and insist the warrantless search issue is properly framed only in terms of whether the search was valid under Gant. See State v. Jones, 835 N.E.2d 1002, 1004 (Ind. 2005).”

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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