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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. I will be filing a lawsuit in Tippecanoe County for so many violations in a case we became involved in, including failure to contact through mail, Violation of 4th Amendment rights, Violation of Civil Rights, and so on. Even the Indiana Ombudsmen Bureau found violations and I have now received the report and they are demanding further training in Tippecanoe County. I am going to make sure they follow through!!!

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  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

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