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Officer's questions went beyond seat belt act

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The inquiry by a police officer to a driver stopped for a seat belt violation about the "large, unusual bulge" in his pants went beyond the state's Seatbelt Enforcement Act, the Indiana Supreme Court ruled Thursday.

A police officer stopped Robert Richardson for driving his truck while not wearing a seat belt. The officer had stopped Richardson before and never had any problems with him. After stopping him, she noticed a large, strangely shaped bulge in his pants which was his handgun. He produced a tattered gun permit, but the expiration date wasn't legible. Based on the issue date, however, the permit should have still been valid. The officer radioed headquarters to do a criminal check on Richardson, but there was a discrepancy on whether he had been arrested for misdemeanors or felonies in the past. The officer tried to arrest him for having a gun with a prior felony conviction, but Richardson struggled. After subduing him, the officer found cocaine in his underwear.

He was charged with felony possession and dealing in cocaine, as well as felony possession of cocaine and a firearm. He also was charged with misdemeanor resisting law enforcement, and battery on a law enforcement officer. The trial court granted Richardson's motion to suppress the evidence.

On appeal, the Indiana Court of Appeals reversed, finding the officer's questions and actions were reasonable under the act based on the totality of the circumstances and concern for safety.

But in State of Indiana v. Robert Richardson, No. 49S02-0910-CR-428, the justices unanimously agreed with the trial court that the officer's actions weren't reasonable under the Seatbelt Enforcement Act. Under the act, a car, the contents of the car, or the driver or passengers may not be inspected, searched, or detained only because they violated the act. If circumstances warrant, an officer may make a further investigation if she believes illegal activity is going on, but the state must prove that the intrusion was reasonable.

The officer who stopped Richardson "crossed a line" because Richardson was cooperative, admitted he wasn't wearing his seat belt, informed her of his gun, and had a valid permit. The fact Richardson had a valid gun permit should have ended any further questioning by the officer, wrote Justice Frank Sullivan.

"There will, of course, be circumstances where something more than an 'unusual bulge' will be visible, or other conditions that provide a police officer with the requisite reasonable suspicion to conduct further inquiry. This is not one of them," he continued.

The Supreme Court remanded for further proceedings on whether Richardson's conduct created probable cause to arrest him for forcibly resisting arrest and battery upon a law enforcement officer. The justices declined to rule on that issue because of an insufficient record as to whether his resisting law enforcement and battery charges were severable offenses independent of the seat belt search that warrant prosecution.

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  1. 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

  2. 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!

  3. 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.

  4. 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.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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