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COA: Police didn't need to search car after stop

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The Indiana Court of Appeals reversed a man's unlawful possession of a firearm by a serious violent felon conviction, ruling the warrantless search of the car the man was driving violated his federal and state constitutional rights.

In light of the recent United States Supreme Court ruling in Arizona v. Gant, 556 U.S. 129 S. Ct. 170, 1719 (2009), the appellate court here reversed Timothy Hathaway's conviction because there was no reasonable basis for the arresting officer to search the car following the traffic stop. Hathaway was pulled over after a police officer saw him make a right turn without properly signaling and for having dark-tinted windows. Hathaway was originally arrested for driving while suspended with a prior judgment and told officers the car was registered to his sister. Both he and his passenger cooperated with police.

The police officer searched the car as part of a search incident to arrest and an inventory search prior to towing the vehicle. He found a gun under the driver's seat, and Hathaway admitted the gun was his. Hathaway's sister arrived at the scene and was allowed to drive her car home.

Hathaway was only charged with unlawful possession and not any traffic infractions or driving with a suspended license. He filed a motion to suppress the handgun, which was denied.

In Timothy Hathaway v. State of Indiana, No. 49A02-0807-CR-568, the appellate court found Gant to be similar to the instant case. Gant was arrested for driving while suspended and police found cocaine in his car. The U.S. Supreme Court held in cases where the recent occupant of a car is arrested for a traffic violation, there isn't a reasonable basis to believe the car contains relevant evidence.

Under the Indiana Constitution, the burden is on the state to show the search was reasonable under the totality of the circumstances, wrote Senior Judge Betty Barteau. There weren't any facts in this case to show the police officer needed to search Hathaway's car to find or preserve evidence of driving with a suspended license. Everyone cooperated and the officer didn't testify he feared for his safety during the stop. Based on the facts of the case, the search was unreasonable under the Indiana Constitution, she wrote.

The appellate court reversed Hathaway's conviction and sentence and remanded for it to be vacated.

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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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