Justices reverse grant of motion to suppress based on pat-down search

March 2, 2015

In a 4-1 decision Monday, the Indiana Supreme Court ruled it is not inherently coercive for police to give conditional permission to step out of a vehicle during a traffic stop, subject to the motorist’s consent to a pat-down search.

The state appealed the grant of Michael Cunningham’s motion to suppress drug evidence found in his pocket and in his car during a traffic stop. Police pulled Cunningham’s truck over because the red lens over one of his taillights was missing. Cunningham asked if he could step out of his truck to look at it and the officer told him that he would be pat down for any weapons for safety reasons. Cunningham agreed and got out of the car. The officer patted him down and found a pill bottle in his front pocket. Cunningham freely admitted that it was marijuana. He also said he had a pipe in the car.

The trial court granted his motion to suppress, finding that Indiana statute only requires one red taillight, so the traffic stop was invalid. The COA affirmed 2-1 on Cunningham’s other claim, that his consent was not valid since the officer had no reasonable suspicion of danger.

Chief Justice Loretta Rush, writing for the majority, noted that it is not inherently coercive to choose whether to get out of a car and be frisked or to stay inside the vehicle unsearched. The majority also held that Cunningham’s right to refuse consent to search was implicit in his choice to get out of the truck or stay inside.

“The circumstances of Defendant’s request, and the officer’s response, reflect Defendant’s knowledge that he could avoid an unwanted search simply by choosing not to get out of his truck. It may have been preferable in retrospect if the officer had stated that choice explicitly. But regardless of any imprecision in the officer’s language, Defendant recognized from the circumstances that he could refuse the search simply by changing his mind about inspecting the taillight. Accordingly, his choice to step out of the truck and submit to the pat-down it entailed was free and voluntary,” Rush wrote in reversing the trial court in State of Indiana v. Michael E. Cunningham, 19S05-1409-CR-599.

Justice Robert Rucker dissented, finding Cunningham’s purported consent to the pat-down search was constitutionally invalid.

“It is of course the case that police officers have the authority to maintain control of a traffic stop, including ordering someone to either stay in or exit a vehicle. However, it goes too far to permit a police officer to be able to barter an individual’s constitutional right to be free from warrantless, unreasonable searches in exchange for the individual to verify he in fact was committing a minor traffic infraction as the officer alleged,” he wrote.



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