Article from: www.thenewspaper.com/news/43/4363.asp
3/21/2014Indiana Court Rules Against Searching Motorists Who Leave Their Car
Looking at a tail light during a traffic stop does not justify a pat down, the Indiana Court of Appeals ruled.
Police may not search a motorist simply because he gets out of his car, the Indiana Court of Appeals decided last month. A divided three-judge panel found Huntingburg Police Officer Andrew Hammock was in the wrong when he performed a pat-down search of Michael E. Cunningham simply because the driver wanted to see whether his tail light really was broken while pulled over for the offense on May 17, 2013.
During the stop, Cunningham was genuinely surprised when the officer told him one of his tail light covers was missing. He knew he had a cracked lens, but he did not think it was completely broken. Cunningham asked if he could see for himself. Officer Hammock said he could, but he would have to be searched first. Officer Hammock felt a pill bottle in Cunningham's pocket, and when asked Cunningham admitted it contained marijuana. He also had a pipe in the car. Officer Hammock arrested Cunningham.
Cunningham was charged with Class A misdemeanors for possession of marijuana and marijuana paraphernalia. At trial, Cunningham argued the entire traffic stop was illegal. The appellate court disagreed and found the initial traffic stop was entirely justified, but it went on to question the validity of the pat-down search.
"We first note that absent consent by Cunningham, Officer Hammock could not have legally conducted a pat-down search of Cunningham," Judge Michael P. Barnes wrote for the majority. "Under the Fourth Amendment, in order to conduct a pat-down search of a person, an officer must have knowledge of facts that would warrant a reasonably prudent person in the same circumstances to believe that the officer was in danger."
The judges saw no such danger here. Cunningham was alone in his car and Officer Hammock had a second officer as backup.
"Specific to the situation faced by Officer Hammock, it is well-settled that police officers are not permitted to conduct pat-down searches of occupants of vehicles pulled over during a routine traffic stop unless there is reasonable suspicion to believe that the person to be subjected to the frisk is armed and dangerous," Judge Barnes wrote. "A generalized suspicion by an officer that 'everyone can be armed' does not authorize a pat-down search."
Pat-downs are only allowed in cases where the motorist is uncooperative, aggressive and making "furtive movements." The court decided that the pat-down was conducted out of a general concern for officer safety, not a genuine threat.
"Cunningham merely asked to see the broken-out tail lamp because he thought it was only cracked, not completely broken," Judge Barnes wrote. "There was nothing inherently threatening in that request, and Officer Hammock did not testify as to feeling threatened."
Because Cunningham was cooperative, he followed the officer's instructions. As such, the court found that this did not constitute consent for the search.
"Instead, Officer Hammock's testimony demonstrates that he gave an ultimatum to Cunningham: if he decided to exit the vehicle to inspect the tail lamp, 'I would pat him down for any weapons just for officer safety issue,'" Judge Barnes wrote. "Phrased in this way, Cunningham had no choice but to submit to the pat-down when he exited the vehicle, despite the absence of reasonable suspicion that he was armed and dangerous."
The panel majority declared the pat-down search a violation of the Fourth Amendment and suppressed evidence of the marijuana. As a result, the charges against Cunningham will not stick. In a dissenting opinion, Judge Elaine B. Brown disagreed with her colleagues and argued Cunningham's acquiescence to the search amounted to consent.
A copy of the decision is available in a 200k PDF file at the source link below.
Source: Indiana v. Cunningham (Court of Appeals, State of Indiana, 2/27/2014)
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