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The Indiana Supreme Court will hear oral arguments next month to determine whether a man brought to jail while significantly intoxicated should have been convicted of a felony for admitting to jailers that he possessed pepper spray.
The court has scheduled an oral argument for Tervarus L. Gary v. State of Indiana on Dec. 18, in the Supreme Court Courtroom at the Statehouse, at 9 a.m.
According to court documents, on Nov. 5, 2023, Elkhart police officers were called to remove Gary from a home where he was found intoxicated by fentanyl, methamphetamine or both. The arrested officers described Gary as passively noncompliant, “like a rag doll.”
Before transporting him to jail, the officers found a meth pipe on Gary and seized it.
When they arrived at the jail, four officers carried him in, walking past a search room and into the booking area.
From there, the officers placed him directly into a cell without conducting a search or patting him down. They had decided to wait until Gary was deemed compliant to restrain him and perform a thorough search.
At some point while in the cell, Gary called for the jail staff over an intercom button and told them he had a knife and a starter kit (a can of pepper spray and a lighter).
When officers approached the window of the cell, Gary showed them the can of pepper spray and asked to make a phone call.
According to court evidence, an officer approached the cell and asked Gary to show what else he had on him, given that he mentioned a knife previously.
“‘Cause if you have a knife, things are going to go really south, really fast,” the officer told Gary.
Gary responded, “Ok. And what? It’s all my fault? You all brought me in here with that on me.”
After Gary mentioned that officers had already searched him, the officer told Gary he could “make this a charge really fast.”
The officers commanded Gary to place the pepper spray on the bench, kneel and put his hands behind his head, but Gary refused. So, the officers used pepper spray to make Gary comply with their commands.
They then put Gary through a body scanner and discovered a lighter, which they seized.
The state charged Gary with a Level 5 felony for possessing material capable of causing bodily injury by an inmate. A jury found Gary guilty, and the Elkhart Superior Court sentenced him to four years’ confinement.
Upon appeal, Gary argued his conviction must be reversed because he did not voluntarily possess the pepper spray while in jail.
According to Indiana law, “A person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense.”
This summer, the Indiana Court of Appeals reversed the lower court’s verdict, finding that Gary did not choose to enter the jail while possessing prohibited items; instead, he voluntarily told law enforcement that he had those items.
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