Richard rule’ questioned during oral arguments in 4th Amendment case

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The Indiana Supreme Court is being asked to determine whether a ruling by the Indiana Court of Appeals that allows police to search a passenger in a car after a police dog alerts to drugs being in the vehicle goes too far.

When a K-9 police officer alerted to the presence of drugs in a van police had received a prior tip about, the officers on the scene handcuffed the passenger, Will Thomas, and took him to the local police station after he refused to consent to a strip search. Thomas was then seen on police video trying to swallow several grams of heroin, but his counsel argues such evidence should not be used against him because officers lacked reasonable suspicion to detain him in the first place.

But during oral arguments Thursday in the case of Will Thomas v. State of Indiana, 27S02-1703-CR-00170, Larry Allen, a deputy attorney general representing the state, argued before the court that police officers did have probable cause to detain and search Thomas. He cited the K-9 alert, the information police gained through the prior tip and the fact that the officers had previously eliminated the car as the location of the heroin, thus leaving Thomas and the driver, Byron Christmas, as the only possible carriers of the drugs.

Thus, Thomas’ conviction for dealing in cocaine or narcotic drug should be affirmed, Allen said, urging the Supreme Court to overturn the Indiana Court of Appeals’ reversal. But William Myers, a Grant County public defender representing Thomas, urged the opposite, arguing his client’s Fourth Amendment rights were violated when officers placed him in handcuffs.

Thomas was within his rights to refuse to consent to a strip search, Myers said, and the fact the drug dog had alerted on the van should not have been enough to allow officers to search Thomas and Christmas. Myers took particular issue with the decision in the case of Richard v. State, 7 N.E.36 347 (Ind. Ct. App. 2014), which held that a positive K-9 alert on a vehicle can lead to the conclusion that the passengers in the vehicle have at least construction possession of illegal drugs.

Myers said the rule in Richard goes too far, but Allen disagreed and instead said Richard simply allows officers to move through a process of elimination to find the source of the drugs alerted to by the K-9 officer. Asked by Chief Justice Loretta Rush why such a process of elimination creates a legal problem, Myers said it would open the door for officers to arrest someone based solely on a K-9 alert, not an identifiable offense.

Oral arguments in Thomas’ case were succinct, with counsel using only a combined 28 minutes of the allotted 40 minutes for oral arguments. The full oral arguments can be viewed here.


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  1. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.