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Judges find search of car for gun not justified

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A panel of Indiana Court of Appeals judges reversed the denial of a defendant's motion to suppress evidence of drugs found in his car during a search, but one judge believed the man's cooperation and respect toward the police officer shouldn't factor into their decision making.

In Melvin Washington v. State of Indiana, No. 49A02-0907-CV-649, Melvin Washington brought an interlocutory appeal of the denial to suppress evidence. An Indianapolis Metropolitan Police officer pulled over Washington's car because of a broken headlight. Washington was cooperative with the officer and admitted he had a gun under his front seat when asked if he had any weapons. Washington had a valid permit to carry the gun. While looking under the seat to get the gun, the officer saw a bag of marijuana.

He was charged with Class A misdemeanor possession of marijuana. The trial court denied his motion to suppress the drug evidence. Washington argued that the search violated his rights under the state and federal constitutions.

The appellate judges unanimously agreed that Washington's motion to suppress should have been granted, but came to their conclusion through different analyses. Judges Michael Kirsch and Carr Darden relied on Malone v. State, 882 N.E.2d 784, 786 (Ind. Ct. App. 2008), to conclude that in the absence of an articulable basis that either there was a legitimate concern for officer safety or a belief that a crime had been or was being committed, searching Washington's car wasn't justified. The arresting officer testified he wasn't specifically concerned for his safety during the stop and Washington made no furtive movements, was respectful, and cooperated with the officer.

Judge Melissa May concurred in a separate opinion and wrote that the motion to suppress should have been granted based on Arizona v. Gant, U.S. 129 S. Ct. 1710, 1723-24 (2009). Even though Gant involved an arrest instead of a traffic stop, Washington was also removed from his car and handcuffed and his statement that there was a gun under his seat couldn't justify a search of the car based on concern for officer safety.

"...Gant created a rule that relieves all of us from the burden of determining whether subjective facts (such as cooperation, respectfulness, and furtive movements) create 'an articulable basis' that a search is necessary for officer safety," she wrote. "...It seems to me, the rule articulated in Gant simultaneously increases protection for two important interests: the safety of our police officers and the constitutional rights of our citizens. As we all too frequently must choose between competing interests when deciding cases, I believe we ought to take full advantage of this opportunity."

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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