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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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