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Officer didn't conduct investigatory stop

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A trial court didn't abuse its discretion in admitting evidence that a juvenile possessed marijuana because the seizure of the drug didn't violate the teen's constitutional rights, the Indiana Court of Appeals ruled.

In R.H. v. State of Indiana, No. 49A02-0903-JV-218, R.H. appealed his adjudication as a delinquent child for committing what would be Class A misdemeanor possession of marijuana if committed by an adult. R.H. was in the driver's seat of a car with three others parked in front of a woman's house at night. The homeowner was suspicious of the car and called police.

Office Shawn Holmes pulled up behind the car and activated his emergency lights. When a passenger rolled down his window, smoke came out of the car. He found marijuana in the car in the front console's ashtray and two bags on the floor of the front passenger seat.

R.H. argued the seizure of the marijuana resulted from a detention that violated his rights under the federal and state constitutions and that Holmes lacked reasonable suspicion to conduct an investigatory stop. R.H. believed that the use of the emergency lights meant he was being detained and not free to leave the scene or not answer questions.

The appellate court rejected his arguments and relying on Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003), determined Holmes' approach and initial contact with R.H. didn't amount to seizure under the Fourth Amendment. Holmes was responding to a report from a concerned citizen, it was late at night, the car was already stopped, and he displayed no force, wrote Judge Carr Darden for the majority. They also weren't persuaded that when Holmes activated his lights to identify himself to other motorists, that it constituted a stop of R.H.'s car.

Because Judges Darden and Margret Robb found the initial encounter didn't constitute an investigatory stop, they didn't address whether Holmes had reasonable suspicion required under Terry v. Ohio, 392 U.S. 1 (1968), to conduct an investigatory stop. Judge Paul Mathias, in his concurring opinion, believed there is a solid statutory argument to be made that it would have been illegal for R.H. to drive away once Holmes approached the car with his lights activated. He also noted no right-minded person feels able to disregard the police unless he or she is told they are free to do so.

"The test should not be whether a reasonable person feels free to leave, because every stop is a seizure to the extent no reasonable person ever does feel free to leave; the test should be whether the seizure has become an unreasonable intrusion," he wrote.

A better test is to consider a car stopped in the circumstances of the instant case within the meaning of Terry. The facts giving rise to R.H.'s stop are facts previously held to warrant at least a Terry stop, he wrote. Judge Mathias also believed the evidence could be admitted under the Litchfield test.

The appellate court also determined the evidence was sufficient to support R.H.'s adjudication. The drugs found in the car were in plain view of R.H. and within reach of him, so it's reasonable to infer he knew of the marijuana and had the ability to exercise dominion and control over it, wrote Judge Darden.

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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