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COA overturns drug conviction

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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.

 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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