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COA reverses dismissal of drug charges

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A trial court erred when it sua sponte decided to exclude evidence from a warrantless search of a defendant's car and dismiss the drug charges against him as a result of that search, the Indiana Court of Appeals ruled today.

In State of Indiana v. James S. Hobbs IV, No. 19A01-0904-CR-187, the state asked the appellate court to overturn the Dubois Superior Court's decision that dismissed James Hobbs' charges of possession of marijuana and possession of paraphernalia as Class A misdemeanors.

Police served a felony warrant on Hobbs while he was at work. Prior to serving the warrant, police saw him leave the restaurant he worked at, put something in his car, and go back inside. Hobbs refused permission to search his car, so a narcotics detection dog sniffed the outside of it. The dog smelled an illegal narcotic and inside the car police found a cooler that contained scales, rolling papers, and marijuana.

After the trial court dismissed the charges, the state filed a motion to correct error and a change of judge; those motions were denied.

The Court of Appeals analyzed the search under the Fourth Amendment of the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. Under the federal constitution, police don't have to have a search warrant before they search a car they have probable cause to believe contains illegal drugs. A canine sweep of the outside of a car doesn't intrude upon the privacy interest under the Fourth Amendment, so probable cause isn't required to use a narcotics detection dog, wrote Judge James Kirsch.

"The narcotics detection dog's alert, on the exterior of Hobbs' vehicle, to the presence of contraband supplied the probable cause necessary for further police investigation of the contents of Hobbs' vehicle. Accordingly, the warrantless search of Hobbs' vehicle does not appear to have contravened the Fourth Amendment as interpreted by our Supreme Court," he wrote.

The appellate court relied on Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005), Brown v. State, 653 N.E.2d 77 (Ind. 1995), and Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005), when analyzing the search under the state's constitution. Based on those cases, the Court of Appeals concluded the warrantless search didn't violate Article 1, Section 11. The alert by the narcotics detection dog had provided a significant "degree of concern, suspicion, or knowledge that a violation had occurred," wrote Judge Kirsch quoting from Litchfield. The judges also determined the three factors of Litchfield were satisfied in the instant case.

"We conclude, after application of the Litchfield factors, that the present case is more similar to Myers, where the warrantless search was upheld, than it is to Brown, where the search was found to be in violation of the Indiana Constitution. Accordingly, the trial court erred when it determined, sua sponte, that the warrantless search violated the Indiana Constitution," Judge Kirsch wrote.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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