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Monday, March 02, 2015

Ind. Decisions - Supreme Court decides one today, a reversal

In State of Indiana v. Michael E. Cunningham, an 11-page, 4-1 opinion, Chief Justice Rush writes:

Unless police have reasonable suspicion that a subject is armed and dangerous, they may generally conduct a pat-down for officer safety only with the subject’s voluntary consent. Here, Defendant asked to step out of his truck during a traffic stop, and police made their permission conditional on a pat-down. Defendant argues that choice was inherently coercive and rendered his consent involuntary, but we disagree. Police could simply have required Defendant to remain in the truck, with no option of getting out, as part of their authority to control the scene of a traffic stop. Therefore, they could also make permission to exit conditional on consent to a pat-down, since Defendant had the option of staying in the truck and thus avoiding the search. We granted transfer after oral argument, and now reverse the trial court’s grant of Defendant’s motion to suppress evidence obtained as a result of the pat-down. * * *

Police always have the right to require a driver to remain inside the vehicle during a traffic stop, even without particularized officer-safety concerns. Accordingly, it is not inherently coercive for police to give conditional permission to step out of the vehicle, subject to the motorist’s consent to a pat-down. Such a situation offers the motorist a free choice to remain unsearched by staying inside the vehicle—so stepping out signifies consent, not coercion. And here, any expansion of the search from Defendant’s initial consent was the product of his subsequent consent, and not of improper police conduct. We therefore reverse the trial court’s order granting Defendant’s motion to suppress, and remand for further proceedings.

Dickson, David, and Massa, JJ., concur.

Rucker, J., dissents with separate opinion. [which begins, at p. 9] In my view the State has failed to establish Cunningham’s purported consent to the pat-down was constitutionally valid. Therefore I respectfully dissent. * * *

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. Up to the point when Cunningham asked to step out of the vehicle, the officer had no safety concerns. The officer also had not instructed Cunningham to remain in the vehicle. If instead of asking permission Cunningham simply had gotten out of the vehicle, inspected the light in the same calm demeanor, then immediately got back in his vehicle— whether or not Officer Hammock in the meantime had ordered him back in—Cunningham would not have done anything to warrant a search. See Jett v. State, 716 N.E.2d at 71. Unlike the majority, it appears to me Office Hammock was not seeking Cunningham’s permission to search in telling Cunningham he “would pat him down.” Tr. at 6 (emphasis added). Instead it is apparent the officer was merely asserting that he had that right. Cunningham’s response of “that was fine,” id., only served as verbal acknowledgement of his submission to the claimed authority.

I agree with my colleagues on the Court of Appeals that the “pat-down search of Cunningham violated the Fourth Amendment and the resulting fruits of that search must be suppressed.” State v. Cunningham, 4 N.E.3d 800, 807 (Ind. Ct. App. 2014). Accordingly, I would affirm the trial court’s grant of Cunningham’s motion to suppress.

Posted by Marcia Oddi on March 2, 2015 12:49 PM
Posted to Ind. Sup.Ct. Decisions