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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. That comment on this e-site, which reports on every building, courtroom or even insignificant social movement by beltway sycophants as being named to honor the yet-quite-alive former chief judge, is truly laughable!

  2. Is this a social parallel to the Mosby prosecutions in Baltimore? Progressive ideology ever seeks Pilgrims to burn at the stake. (I should know.)

  3. The Conour embarrassment is an example of why it would be a good idea to NOT name public buildings or to erect monuments to "worthy" people until AFTER they have been dead three years, at least. And we also need to stop naming federal buildings and roads after a worthless politician whose only achievement was getting elected multiple times (like a certain Congressman after whom we renamed the largest post office in the state). Also, why have we renamed BOTH the Center Township government center AND the new bus terminal/bum hangout after Julia Carson?

  4. Other than a complete lack of any verifiable and valid historical citations to back your wild context-free accusations, you also forget to allege "ate Native American children, ate slave children, ate their own children, and often did it all while using salad forks rather than dinner forks." (gasp)

  5. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

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