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Tuesday, October 23, 2007

Ind. Decisions - "Drug question improper: Tossing of evidence by Allen judge is upheld"

The COA opinion yesterday in the case of State of Indiana v. Raymond L. Washington, Jr. (see ILB entry here - 2nd case), is the subject of a story today in the Fort Wayne Journal Gazette, reported by Niki Kelly. Some quotes:

The Indiana Court of Appeals ruled Monday that a Fort Wayne police officer violated the Indiana Constitution when he asked a man stopped for possible traffic violations whether he had any drugs on him.

The case is one of “first impression,” which means the court has not previously dealt with the issue. * * *

During the stop, Hoffman asked Washington whether he had any guns, drugs or anything that might harm the officer. Washington answered that he had marijuana in his front pocket and was arrested and charged with misdemeanor drug possession.

Allen Superior Court Magistrate Robert Ross tossed out the marijuana as evidence, saying the officer violated the state’s constitutional protections against unreasonable search and seizure.

According to Monday’s appellate court ruling, Hoffman claimed Washington was acting nervous during the traffic stop, including not making eye contact with him.

But the appeals court said that wasn’t enough to justify the question.

“Because it is not at all unusual that a citizen may become nervous when confronted by law enforcement officials, other evidence that a person may be engaged in criminal activity must accompany nervousness before the nervousness will evoke suspicion necessary to support detention,” the decision said.

Several times in the 2-1 opinion, the judges mentioned the increasing practice of officers stopping vehicles for minor traffic offenses and asking about the presence of illegal substances.

The ruling upholds the rights of officers to ask about weapons out of concern for officer safety.

But the court found Hoffman’s inquiry about drugs in this case – in which there were no indication of drugs or other criminal activity – was not related to the purpose of the stop or to officer safety.

“While we concede that Officer Hoffman’s inquiry was minimal in terms of duration, it nevertheless extended the duration of the stop,” the decision said. “Of greater significance, however, is the fact that to allow police to routinely question individuals during a traffic stop about the presence of drugs would open the door to all sorts of inquiries, including whether the person cheated on his last year’s tax return or had in the past illegally pirated music from the Internet. While tax fraud and Internet piracy are – like illegal drug possession – serious concerns, routine traffic stops are not the place for such inquiries.”

Posted by Marcia Oddi on October 23, 2007 11:33 AM
Posted to Ind. App.Ct. Decisions