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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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