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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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