ILNews

Judge worries ruling may make bright-line rule in traffic stops

Back to TopE-mailPrintBookmark and Share

A panel of Indiana Court of Appeals judges each wrote their own opinion on whether a police officer’s safety concerns were legitimate enough to allow the officer to search a car after a traffic stop.

Judge Paul Mathias in his dissent worried that Judge Patricia Riley’s opinion – in which the majority found the search of Cedric Lewis’ car violated state and federal constitutions – began to take the law to a bright-line rule regarding the officer safety exception to the warrant requirement in the context of a car at the side of the road.

Indianapolis Metropolitan Police Department Officer Romeo Joson saw Lewis speeding and committing other traffic violations. When he pulled the car over, Lewis immediately put his hands out the window and seemed nervous. After finding out he was driving on a suspended license, Joson arrested Lewis. In answering a question about drugs or weapons in the car, Lewis only said there were no drugs.

Joson went to the open driver’s side door to ask the passenger to get out of the car because he believed it would be towed. As he leaned through the open door, he saw a handgun in the center console area. Lewis was convicted of Class B felony unlawful possession of a firearm by a serious violent felon over his objections to suppress the handgun evidence.

In Cedric Lewis v. State of Indiana, No. 49A02-0908-CR-736, Judge Riley focused her opinion on the officer safety exception for searching a car without a warrant and found Joson’s safety to not be an issue. If Joson was concerned for his safety, he wouldn’t have stuck his head in the driver’s side door to tell the passenger she needed to get out of the car. She wrote that she failed to see why it was necessary for the officer to lean into the vehicle to talk to the passenger.  

Judge Riley didn’t believe the holding would construe a bright-line rule that an officer could never lean into a car or reposition himself to get a better vantage point under the Fourth Amendment.

“Rather, officers may lawfully position themselves in any manner of ways outside of the vehicle as long as they do not cross into a constitutionally protected area. As soon an officer crosses into a constitutionally protected area without the benefit of a recognized exception to the Fourth Amendment, like here, he is no longer rightfully positioned and is violating the defendant’s constitutional rights,” she wrote.

She also found the state didn’t satisfy the burden that the intrusion was reasonable under the Indiana Constitution.

But Judge Mathias thought the ruling went in the direction of creating a bright-line rule. While he wishes the record was more complete in explaining why the officer leaned into the car rather than using the onboard public address system, or that Joson had been asked and fully explained why he still felt concerned for his safety if he was willing to lean into the car, Judge Mathias believed there was enough information to support introducing the gun as evidence. Joson knew there might be a weapon in the car based on Lewis’ partial answer and there was a passenger who remained in the car.

Judge James 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.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

ADVERTISEMENT