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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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  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

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  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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