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Thursday, November 15, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP)

For publication opinions today (3):

In Derek Asklar and Pauline Asklar v. David Gilb, Paul Garrett Smith d/b/a P.H. One Trucking, Empire Fire and Marine Ins. Co., d/b/a Zurich; Travelers Ideminity Co. of America , an 8-page opinion, Judge Vaidik writes:

Derek and Pauline Asklar (“the Asklars”) appeal the trial court’s decision to grant summary judgment in favor of Empire Fire and Marine Insurance Company (“Empire”). The Asklars contend that the trial court erred in holding that as a matter of law, Georgia law governs this dispute and that Empire’s uninsured/underinsured motorist coverage limit was only $75,000. Finding that Indiana law should apply in this case, but that Empire’s uninsured/underinsured motorist coverage limit is still only $75,000, we affirm in part and reverse in part.
In In the Matter of the Term. of the Parent-Child Rel. of A.P. & Au.P.; M.H. & T.P. v. The Indiana Dept. of Child Services , a 15-page opinion, Judge Pyle writes:
M.H. (“Mother”) and T.P. (“Father”) appeal the termination of their parental rights as to their minor children, A.P. and Au.P. (collectively, “the children”).
We affirm.
In Derek Clanton v. State of Indiana , a 25-page, 2-1 opinion, Judge Baker writes:
Derek Clanton was found in possession of cocaine after he was stopped and searched by an off-duty police officer who was working part-time as a security officer for an apartment complex in a high crime area of Indianapolis. The cocaine was in a small plastic bag stuffed into a pen cap, and it was discovered after the officer removed the pen cap from Clanton’s pocket during a patdown of Clanton for weapons.

Claiming the cocaine was found during an unreasonable search and seizure in violation of the United States and Indiana Constitutions, Clanton filed a motion to suppress. The trial court denied the motion, and following a bench trial, Clanton was subsequently convicted of Possession of Cocaine, a class D felony.

We conclude that the trial court erred when it admitted the cocaine into evidence because the arresting officer was not entitled to further search the contents of the pen cap after determining that the pen cap was not a weapon. Because we find this issue to be dispositive, we do not specifically address whether the initial stop and patdown were proper under the circumstances presented here. In reaching this decision, however, we also conclude that the Fourth Amendment does not categorically fail to apply to off-duty police officers working as security officers on private property.

Accordingly, we reverse the judgment of the trial court. * * *

ROBB, C.J., concurs.
BRADFORD, J., concurs in part and dissents in part with opinion. [which begins, at p. 15 of 25] I agree with the majority that the stop conducted by Officer Smith implicated the constitutional protections provided by the Fourth Amendment and Article I, Section 11. However, I do not believe that either the stop or the subsequent search violated those constitutional protections. As such, I concur in part and respectfully dissent in part.

NFP civil opinions today (1):

Term. of the Parent-Child Rel. of: B.T. (Minor Child), and B.J.T. (Father) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (2):

Kurt E. Hinkle v. State of Indiana (NFP)

Jeffery Evans v. State of Indiana (NFP)

Posted by Marcia Oddi on November 15, 2012 11:08 AM
Posted to Ind. App.Ct. Decisions