Because there was no evidence presented as to why a defendant was stopped or that the state’s actions were reasonable, the Indiana Court of Appeals reversed a man’s conviction of misdemeanor possession of marijuana.

Herbert Yanez was at an Indianapolis flea market when he was stopped by Special Agent Rodriguez with the Immigration and Customs Enforcement Unit of the Department of Homeland Security. Rodriguez was part of an investigation looking for illegal immigrants who are gang members and for counterfeit items. After Rodriguez stopped Yanez, Indianapolis Metropolitan Police Officer Humerickhouse approached to assist. Yanez consented to a pat-down search, which revealed a baggie of marijuana sticking out of Yanez’s pants pocket.

Yanez sought to suppress the drug based on lack of a constitutional basis for the investigatory stop. The trial court denied the motion and found him guilty.

Addressing only the state constitutional grounds, the Court of Appeals found in Herbert Yanez v. State of Indiana, No. 49A02-1104-CR-362, that the state presented no evidence of a concern or suspicion that a violation of law had occurred. Rodriguez stopped Yanez, yet the agent did not testify at trial. Humerickhouse was the only witness for the state.

With regards to whether the state presented evidence that the officers’ actions were reasonable, the appellate court split. The majority found the evidence presented failed to establish the reasonableness of the state’s actions, but Judge Michael Barnes disagreed as to this point.

The question arises whether Rodriguez had “seized” Yanez when Humerickhouse approached him. But without Rodriguez’s testimony, the question can’t be answered.

“Although we can speculate that Yanez’s initial encounter with Agent Rodriguez might have been ‘consensual,’ as that word is defined by case law, I believe it was the State’s burden to establish that it was. Without Agent Rodiguez’s testimony, the State failed to meet that burden,” Barnes wrote.