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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".

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