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Monday, March 01, 2010

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Canon Harper and Adrian Porch v. State of Indiana , a 12-page opinion, Judge Riley writes:

Appellants-Defendants, Canon Harper (Harper) and Adrian Porch (Porch), bring this joint interlocutory appeal following the trial court's denial of their motion to suppress evidence seized during a traffic stop. We affirm.

Porch and Harper present two issues on appeal, which we restate as follows: (1) Whether the trial court erred when it denied their motion to suppress evidence; and (2) Whether the trial court erred when it failed to apply the Seatbelt Enforcement Act to the present case. * * *

Porch and Harper argue that after the traffic stop had been completed and they had confirmed that the license plate light was out, the subsequent pat down search and search of the duffle bag was unreasonable. Nevertheless, because Porch consented to the search of his person and to the search of the duffle bag, insofar as they complain that the search was unreasonable, they cannot prevail, as it is well established that consent is a valid exception to the requirements of the Fourth Amendment. Thayer, 904 N.E.2d at 710; see also United States v. Maldonado, 38 F.3d 936, 940 (7th Cir. 1994) (a suspect's failure to object can indicate consent).

We reach a similar result when analyzing Porch and Harper's claim under the Indiana Constitution. [Article 1, Section 11] * * *

Here, upon review of the totality of the circumstances, the State has failed to demonstrate that the pat down and search of the duffle bag was reasonable under the circumstances. * * *

Nevertheless, as the State aptly points out, Officer Jones testified that Porch verbally assented to the search of his person and the duffle bag. One exception to the search warrant requirement occurs when consent is given to the search, under the theory that “when an individual gives permission to a search of either his person or property, governmental intrusion thereon is presumably not unreasonable.” * * *

Porch and Harper argue that the trial court erred in failing to recognize that I.C. § 9-16-6-4(e) governing license plate illumination should be treated similarly to the occupants of a vehicle stopped for violation of the Seatbelt Enforcement Act, I.C. § 9-19-10-3.1, as “[t]hese traffic violations are analogous because neither violation directly places other drivers in danger []” and furthermore, neither of “these traffic violations implicate concerns regarding potential criminal activity beyond the mere violation.”

The Seatbelt Enforcement Act states that “a vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not be inspected, searched, or detained solely because of a violation of this chapter.” I.C. § 9-19-10-3.1. Indiana Code section 9-16-6-4(e), which requires the illumination of license plates, does not include the same language as the Seatbelt Enforcement Act limiting the scope of the stop if violated.

We decline to extend the language of I.C. § 9-19-10-3.1 to I.C. § 9-16-6-4(e). Recently, our supreme court held that the Seatbelt Enforcement Act should not be construed to “prohibit police from questioning motorists or seeking consent to search following a terminated traffic stop.” State v. Washington, 898 N.E.2d 1200, 1207 (Ind. 2008). In light of Washington, it was not unreasonable for the officers to seek consent from Porch and Harper and the trial court did not err by failing to treat the statutes similarly.

CONCLUSION. Based on the foregoing, we find that the search did not violate the Fourth Amendment or Art. 1, Section 11 because Porch consented to the search and the trial court did not err by failing to extend the language of I.C. § 9-19-10-3.1 to I.C. § 9-16-6-4(e). Affirmed.

NFP civil opinions today (2):

M.B. v. Review Board (NFP) - "M.A.B. appeals the Indiana Department of Workforce Development Review Board’s (“the Review Board”) conclusion that M.A.B. voluntarily left employment without good cause in connection to the work. We affirm."

City of New Castle v. Randy Neal, Integrity Land Management, LLC , et al. (NFP) - The question here was whether was whether Neal's Businesses needed to obtain special exception approval to operate the businesses on real estate in New Castle zoned as I-2. "The City contended that, according to the New Castle City Zoning Ordinances (NCZO), Neal's Businesses constituted a junkyard and required the approval of a special exception to operate on the I-2 zoned property. * * * Neal Scrap Metals is required to obtain a license under Chapter 127 of the New Castle City Code, which regulates the operation of junkyards. This chapter requires that for a junkyard license to issue, the applicant must comply with the zoning ordinance requirements. New Castle City Code § 112.04, App. at 22. The description of the operations of the businesses clearly falls within the definition of Junkyard for the purposes of the NCZO. * * * Therefore, Neal's Businesses must obtain special exception approval to operate these businesses within the City of New Castle."

NFP criminal opinions today (2):

Sherri Sullivan v. State of Indiana (NFP)

Jose O. Aparicio-Garcia v. State of Indiana (NFP)

Posted by Marcia Oddi on March 1, 2010 10:53 AM
Posted to Ind. App.Ct. Decisions