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Judges split over Fourth Amendment violation

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Two of the three judges on an Indiana Court of Appeals panel affirmed the suppression of marijuana and a pipe found on a man during a traffic stop, with the dissenting judge believing there was no infringement on the man’s Fourth Amendment rights.

Huntingburg police officer Andrew Hammock pulled over Michael Cunningham’s car because one of the two tail lamps was white – instead of red – because the red lens covering was missing. Cunningham asked to get out of his vehicle to see the tail lamp for himself, to which Hammock said he would pat him down for any weapons for officer safety. Cunningham said that was fine and got out of the car. A pat down yielded a pill bottle, which Cunningham admitted had marijuana in it. He told the officer he had a pipe in his car.

Cunningham was charged with Class A misdemeanors possession of marijuana and possession of paraphernalia. He filed a motion to suppress the marijuana and pipe, which the trial court granted based on its finding that the initial traffic stop was illegal.

The Indiana Court of Appeals judges agreed in State of Indiana v. Michael E. Cunningham, 19A05-1310-CR-489, that the initial traffic stop was not illegal, as law requires vehicles like Cunningham’s to have two red-lighted tail lamps. But the court split on whether the search violated Cunningham’s Fourth Amendment rights.

The majority noted there was no evidence that Cunningham was hostile or threatening when he asked to get out of the car.

“We conclude that Officer Hammock clearly did not ask Cunningham for permission to conduct a pat-down search. Instead, Officer Hammock’s testimony demonstrates that he gave an ultimatum to Cunningham: if he decided to exit the vehicle to inspect the tail lamp, ‘I would pat him down for any weapons just for officer safety issue,’” Judge Michael Barnes wrote. “Phrased in this way, Cunningham had no choice but to submit to the pat-down when he exited the vehicle, despite the absence of reasonable suspicion that he was armed and dangerous.”

But the circumstances didn’t necessitate Cunningham exiting his vehicle, Judge Elaine Brown wrote in her dissent, so he did so with full knowledge that if he did leave his car, he would be subject to a pat down search. He agreed and even told the officer he had marijuana in the pill bottle, handed it to Hammock, and informed him about the pipe in the car. Under these circumstances, she wrote there is no violation of the Fourth Amendment.
 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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