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High court takes 3 cases

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The Indiana Supreme Court will hear a case in which a dissenting Court of Appeals judge worried that the majority’s finding would head toward a bright-line rule regarding the officer safety exception to the warrant requirement in the context of a car on the side of the road.

In Cedric D. Lewis v. State of Indiana,  No. 49S1010-CR-619, the three judges on the appellate panel each wrote an opinion, with Judges Patricia Riley and James Kirsch concluding that the search of Cedric Lewis’ car violated the state and federal constitutions. Lewis was pulled over, immediately stuck his hands out the window and seemed nervous. He said he had no drugs in the car. As the arresting officer opened the driver’s side door to ask the passenger to get out of the car because it would be towed, the officer saw a gun. Lewis’ attempts to suppress the handgun evidence were denied.

Judge Riley focused her opinion on the officer safety exception for searching a car without a warrant and found the officer’s safety to not be an issue. Judge Kirsch concurred in result with Judge Riley because he felt the record failed to answer important questions regarding officer safety concerns and that the state didn’t satisfy its burden to prove that the search was justified.

Judge Paul Mathias dissented because he thought Judge Riley’s ruling went in the direction of creating a bright-line rule regarding where officers may lawfully position themselves outside of a vehicle without a warrant.

The justices also accepted Alva Curtis v. State of Indiana,  No. 49S02-1010-CR-620, in which the Court of Appeals reversed the denial of Alva Curtis’ motion to dismiss charges against him, because not dismissing the charges was a violation of his due process rights. Curtis has physical and mental limitations and is uneducated. When living with a friend, he attacked a neighbor. He was released from jail nearly a month after the incident and ended up in a long-term, locked facility before being moved to a rehabilitation and nursing facility.

Psychiatric examinations determined Curtis couldn’t understand the proceedings, help his attorney, and would likely not be restored to competency. The trial court denied his motion to dismiss and refused to commit him to the Department of Mental Health and Addictions based on the cost to the state.

The appellate court didn’t fault the trial court for not committing Curtis in order to save money, but that rationale doesn’t support the decision to deny dismissing the charging information. The judges cited State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008) to find Curtis’ due process rights had been violated. The Davis court explained the mere act of holding criminal charges indefinitely over the head of someone who won’t ever be able to prove his innocence is a violation of due process rights, wrote Chief Judge John Baker.

In Gibraltar Financial Corp. v. Prestige Equipment Corp., et al., No. 20S03-1010-CV-618, the Court of Appeals affirmed summary judgment for Prestige Equipment Corp. and other defendants on Gibraltar’s complaint of conversion, replevin, and a money judgment.

Gibraltar argued that a lease entered into between Key Corporate Capital Inc. and Vitco Industries Inc., to which Gibraltar is a secured creditor, was actually a disguised sale subject to an unofficial security interest. The judges found after applying the relevant Colorado statute and examining the underlying circumstances of the transaction that the lease was just a lease.
 

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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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