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COA: Lingering odor of burnt marijuana does not justify warrantless search

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No possibility of danger or smell of marijuana was evident, and that was enough to convince the Indiana Court of Appeals to suppress evidence found during a police officer’s search of a motorist’s backpack.  

The COA reversed the trial court’s denial of Adam Miller’s motion to suppress in Adam Miller v. State of Indiana, 53A-05-1211-CR-560. A majority of the court held the trial court erred, but in his dissent, Judge Cale Bradford countered there was probable cause to search Miller’s backpack.

Miller was pulled over by Bloomington police officer Jordan Hasler for driving with an expired license plate sticker. When Hasler decided to tow the car because of its expired sticker, Miller said he needed to retrieve his cell phone and backpack from inside the car. The officer got the backpack and as he searched it for weapons, found marijuana and a smoking device that emitted burnt marijuana odor.

Miller was arrested and charged with possession of paraphernalia, a Class A misdemeanor.

In his motion to suppress the evidence, Miller alleged, in part, violations of the Fourth Amendment of the U.S. Constitution. When the trial court denied Miller’s motion, the defendant filed a motion to correct error and a motion to certify the trial court’s order for interlocutory appeal.

 Miller appealed, arguing the officer’s warrantless search of the backpack was not based on reasonable suspicion of criminal activity or reasonable safety concerns.

The Court of Appeals agreed. It noted when a search is conducted without a warrant, the state has the burden of proving that an exception to the warrant requirement existed. In this instance, the officer could not point to articulable facts supporting either a suspicion of criminal activity or a concern over the possibility of harm.

Subsequently, the COA ruled that the search of Miller’s backpack was impermissible under the Fourth Amendment.

The court of appeals rejected the trial court’s reasoning that the search falls within the automobile exception. It found there is no evidence that the odor of marijuana emanated from the vehicle and Hasler did not testify that the vehicle smelled of marijuana.

In his dissent, Bradford maintained the search was supported by probable cause that contraband might be found in the impounded car.

Bradford stated that even though Hasler did not indicate he detected the odor of burnt marijuana coming from Miller’s vehicle, Hasler did detect the odor of burnt marijuana on Miller and Miller’s actions during the traffic stop were suspicious and raised a reasonable inference that his vehicle contained contraband.

 

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  1. 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

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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