ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
COURT OF APPEALS OF INDIANA
LARRY W. MEDLOCK STEVE CARTER
Medlock Law Office Attorney General of Indiana
ANDREW A. KOBE
Deputy Attorney General
RICHARD W. OSBORNE, )
vs. ) No. 59A01-0309-CR-331
STATE OF INDIANA, )
APPEAL FROM THE ORANGE CIRCUIT COURT
The Honorable Larry R. Blanton, Judge
Cause No. 59C01-0206-FC-036
March 25, 2004
OPINION - FOR PUBLICATION
Today we are asked to determine whether a police officer may encourage a
person on home detention to speed through an inhabited area while under the
influence of alcohol and drugs in order to effectuate a pretextual stop to
allow them to detain and search the occupants of the vehicle. We
find that they may not.
Appellant-defendant Richard W. Osborne brings this interlocutory appeal challenging the trial courts denial
of his motion to suppress evidence. Specifically, he challenges the reasonableness of
the stop under the Fourth Amendment of the United States Constitution and Article
I, Section 11 of the Indiana Constitution.
On the evening of June 10, 2002, David Turner placed a call to
Officer Greg Ashby of the Indiana State Police informing Officer Ashby that he
would be bringing Osborne to French Lick and that Osborne had cocaine in
his possession. Turner and Officer Ashby entered into an agreement whereby Turner
would drive through French Lick with Osborne in the car and exceed the
posted speed limit so that the police could pull him over. In
exchange, Turner wanted Officer Ashby to speak with the prosecutor regarding Turners girlfriend,
who was facing charges of dealing in cocaine in Orange County. There
was no showing that Turner had previously provided reliable information to the police
as an informant, and he had been involved in crimes of dishonesty, including
theft and writing bad checks. At the time of the call to
Officer Ashby, Turner was on home detention, which was known to Officer Matthew
Powell of the French Lick Police Department. Moreover, Turner testified in his
deposition that he informed Officer Ashby that he had been drinking all day
and had consumed cocaine. This testimony was not disputed by the State.
After speaking with Turner, Officer Ashby made arrangements with Officer Powell and Officer
Kirby Stailey of the Indiana State Police as to where they were to
be at the specified time that Turners vehicle would be passing through Prospect
on the way to French Lick so that they could assist Officer Ashby.
Officer Stailey and his canine were to be in the vicinity waiting
for Officer Ashbys call to assist by having the canine trot the vehicle
Later that day, Turner told Osborne that he could get him some women
in French Lick, Appellants Br. p. 3, so they got into the Honda
Prelude owned by Turners girlfriend and drove toward French Lick. At approximately
10:00 p.m.precisely the time that was agreed uponTurner drove through Prospect and passed
Officers Ashby and Powell. Turner turned into the parking lot of a
convenience store, and Osborne exited the vehicle and began walking toward the convenience
store. Officer Ashby pulled in behind Turners vehicle, blocking it, and activated
the emergency lights. At Officer Powells request, Osborne got back inside the
The stop was videotaped from the cameras inside the officers car. During
the stop, Officer Ashby said to Turner, Im going to write you a
ticket just to make it look . . . besides you had a
light out. Appellants App. p. 107. Officer Ashby also later stated
to Turner, Im going to let you go so that we dont blow
. . . . Appellants App. p. 114. Both times he
cut his statements short before completing them. Officer Ashby ultimately issued to
Turner a warning for having a defective headlamp and citations for driving while
suspended and failing to wear a seatbelt. Officer Ashby testified, I didnt
stop him for speed, I stopped him for the head light. Tr.
Officer Stailey walked his canine around the exterior of Turners vehicle, and the
dog gave a positive indication to the passenger side door. Appellants App.
p. 175-76. Officer Stailey then returned his canine to his vehicle and
requested that Osborne exit Turners vehicle. Officer Stailey informed Osborne of his
Miranda rights and asked if he had any drugs in the vehicle or
on his person. Osborne responded that he had cocaine on his person
in his right front pocket, and Officer Stailey retrieved the cocaine from Osbornes
pocket. Officer Ashby took Turner home, and Osborne was arrested.
The State charged Osborne with Possession of Cocaine
See footnote , a class C felony.
On December 12, 2002, Osborne filed a motion to suppress the evidence seized
during the traffic stop. On July 7, 2003, a hearing was held
on Osbornes motion to suppress, and the trial court denied the motion, finding
that the passenger in a vehicle has no constitutional right to challenge the
stop and that the totality of the circumstances as known to the police
officers demonstrated that the police acted appropriately when they stopped Turners vehicle.
The trial court certified its ruling for interlocutory appeal on August 22, 2003,
and we accepted jurisdiction.
DISCUSSION AND DECISION
In resolving the issues presented, we first note that when reviewing a trial
courts decision to deny a motion to suppress, our review is similar to
other sufficiency matters. Edwards v. State, 759 N.E.2d 626, 630 (Ind. 2002)
(citing Goodner v. State, 714 N.E.2d 638, 641 (Ind.1999) (decided based upon the
Fifth Amendment)). The record must disclose substantial evidence of probative value that
supports the trial courts decision. Id. We do not reweigh the
evidence, and we consider conflicting evidence most favorably to the trial courts ruling.
Article One, Section 11 of the Indiana Constitution provides:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable search or seizure, shall not be violated; and no
warrant shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the person or thing to
The Fourth Amendment of the United States constitution contains a nearly identical provision.
However, Indiana courts interpret and apply Section 11 independently from federal Fourth
Amendment jurisprudence. Francis v. State, 764 N.E.2d 641, 646 (Ind. Ct. App.
2002). Inasmuch as we place the burden on the State to show
that under the totality of the circumstances its intrusion was reasonable, the Indiana
constitution provides more liberal protection against search and seizure than does the federal
constitution. State v. Stamper, 788 N.E.2d 862, 865 (Ind. Ct. App. 2003);
Null v. State, 690 N.E.2d 758, 761 (Ind. Ct. App. 1998).
We observe that the decision to stop a vehicle is reasonable where the
police have probable cause to believe that a traffic violation has occurred.
Whren v. United States, 517 U.S. 806, 810 (1996). The subjective intentions
of the officer play no role in determining the reasonableness of the stop
under the Fourth Amendment. Id. at 813. Moreover, pretextual stops are
not unreasonable under the Indiana Constitution provided the officer has probable cause to
believe there has been a traffic violation. Mitchell v. State, 745 N.E.2d
775, 787 (Ind. 2001). However, we note that when evidence is obtained
in violation of the constitution, such evidence may not be used against a
defendant at trial. Frasier v. State, 794 N.E.2d 449, 457 (Ind. Ct. App.
2003). [T]he exclusionary rule is designed to deter police misconduct. . .
. Figert v. State, 686 N.E.2d 827, 834 (Ind. 1997). See
also Quinn v. State, 792 N.E.2d 597, 603 (Ind. Ct. App. 2003) (The
Green[v. U.S., 111 F.3d 515, 523 (7th Cir. 1997)] court described the exclusionary
rule as being calculated to prevent, not repair, police illegality by removing the
incentive to disregard constitutional guarantees).
We note that Osborne argues, and the State conceded at oral argument, that
he has standing to contest this stop as the passenger of the vehicle.
The trial court correctly noted that this court has previously stated that
[a] person has no standing to object to a search of a car
based merely upon the fact that he or she was a passenger legitimately
riding in the car at the time of the search. Appellants App.
p. 11-12 (citing Porter v. State, 570 N.E.2d 1324, 1325 (Ind. Ct. App.
1991); Groff v. State, 415 N.E.2d 721, 726 n. 8 (Ind. Ct. App.
1981)). However, a different panel of this court more recently acknowledged that,
Every person in a motor vehicle has a right to contest the stop
of the vehicle in which he is traveling as either a driver or
passenger. McKnight v. State, 612 N.E.2d 586, 589 (Ind. Ct. App. 1993)
(citing Delaware v. Prouse, 440 U.S. 648 (1979)). We agree with Osborne
and McKnight and find that he has standing to raise this claim.
Our research has revealed no reported case in any American jurisdiction similar to
the circumstances presented here. The nearest available analogy is to a controlled
buy situation. A controlled buy occurs when an undercover police officer or
a private citizen acting as an agent of the police under strict police
supervision and control purchases illegal drugs from a dealer. Indiana courts have
long approved of this investigatory practice. See McCollum v. State, 582 N.E.2d
804 (Ind. 1991); Marlowe v. State, 786 N.E.2d 751 (Ind. Ct. App. 2003);
Whirley v. State, 408 N.E.2d 629 (Ind. Ct. App. 1980); Locklayer v. State,
317 N.E.2d 868, 162 Ind. App. 64 (1974). The key to the
controlled buy is that the police are in control of the situation at
all times. However, this case is easily distinguished from a controlled buy
in light of compelling public policy concerns.
Indiana has long recognized the toll that impaired driving has taken on the
general public and the states interest in preventing accidents caused by drivers who
are intoxicated. Smith v. Cincinnati Ins. Co., 790 N.E.2d 460, 461 (Ind.
2003). See also State v. Gerschoffer, 763 N.E.2d 960, 968 (Ind. 2002)
(observing that there is a public danger of impaired driving and a legitimate
law enforcement purpose of combating drunk driving); Ruge v. Kovach, 467 N.E.2d 673,
681 (Ind. 1984) (noting Indianas interest in keeping its highways safe by removing
drunken drivers from its roads); State v. Snyder, 732 N.E.2d 1240, 1244 (Ind.
Ct. App. 2000) (noting that the State has a vital interest in promoting
public safety by clearing the roads of drunk drivers, who are a threat
to other motorists, pedestrians, and themselves.) ; Schrefler v. State, 660 N.E.2d 585,
588 (Ind. Ct. App. 1996) (recognizing the States interest in keeping its highways
safe from intoxicated drivers); see also Governors Council on Impaired & Dangerous Driving
2002 Annual Report 6 (2003) (noting that in the year 2001, 337 people
died in alcohol-related crashes in Indiana). To be sure, our supreme court
recently declared that impaired driving is so dangerous that the county that borders
the county in which the impaired driving occurred is sufficiently affected by the
activity that it is an appropriate venue for a defendants criminal trial.
See Baugh v. State, 801 N.E.2d 629, 629 (Ind. 2004). Moreover, our
supreme court has also held that it is not a per se violation
of our state constitution to randomly stop vehicles to conduct sobriety checkpoints even
where there is no reasonable suspicion. Gerschoffer, 763 N.E.2d at 967.
Inasmuch as it is a policy of the utmost importance to the State
of Indiana to prevent impaired driving, we find the police officers conduct in
this case to have been outrageously dangerous. The state trooper knew from
the conversation with Turner that Turner had been drinking and consuming cocaine that
day. Appellants App. p. 151, 154. The police flouted Indianas public
policy by agreeing to a plan that required Turner, a man they knew
to have ingested both alcohol and cocaine, to drive upon our public highways
in such a condition. They released a missile over which they had
no control in the form of a Honda Prelude onto the streets of
southern Indiana by not only failing to prevent Turner from driving, but actually
encouraging him to drive by agreeing to and acting upon this plan.
We cannot condone the actions of the police under these circumstances, and we
extend the exclusionary rule to cover not only illegal conduct, but also outrageously
dangerous conduct such as this by the police.
Additionally, as noted above, it is not unreasonable under either the federal or
Indiana constitutions for an officer to make a pretextual stop. Whren, 517
U.S.at 810; Mitchell, 745 N.E.2d at 787. But here, unlike in Whren
and Mitchell, the police created the probable cause to stop the vehicle by
allowing someone they knew to be under the influence of alcohol and drugs
to speed through the community. As the United States Supreme Court observed
in Lewis v. United States, the particular circumstances of each case govern the
admissibility of evidence obtained by stratagem or deception. 385 U.S. 206, 209
(1966). The stratagem employed by the officers here goes above and beyond
pretext, and, under the particular circumstances of this case, was unreasonable.
Moreover, the police by their actions encouraged Turner to violate the terms of
his home detention. An offender who is on home detention may not
leave his home unless he is:
(A) working at employment approved by the court or traveling to or from
(B) unemployed and seeking employment approved for the offender by the court;
(C) undergoing medical, psychiatric, mental health treatment, counseling, or other treatment programs approved
for the offender by the court;
(D) attending an educational institution or a program approved for the offender by
(E) attending a regularly scheduled religious service at a place of worship;
(F) participating in a community work release or community restitution or service program
approved for the offender by the court.
Ind. Code § 35-38-2.5-6. Additionally, an offender on home detention may not
leave his home under other circumstances unless he has documented permission from the
supervising entity. Ind. Code § 35-38-2.5-13. No such permission is apparent
from this record.
We can only conclude that none of these exceptions apply here. Even
if this situation could be considered community restitution, there is no evidence that
Turner or any police officer sought approval by the court. Moreover, no
one obtained documented permission from the entity supervising Turners home detention for Turner
to leave his home. Under the facts as outlined here, no court
would have allowed Turner to leave his home. Based on the totality
of the circumstances, this is the precise type of police misconduct that the
exclusionary rule is meant to deter. We are confident that if not
for the finding
See footnote that Osborne had no standing to raise a motion to
suppress, the trial court would have reached the same conclusion.
Because the actions of the police could certainly be considered outrageously dangerous in
these circumstances, we find that the intrusion here by the police was unreasonable.
Inasmuch as reasonableness is the touchstone of the constitutional analysis, Osbornes rights
under Indiana Constitution Article I, Section 11 were violated. Thus, his motion
to suppress should have been granted. Because we conclude that the search
violated his rights under the Indiana Constitution, we need not address Osbornes Fourth
Amendment argument.See footnote
The order of the trial court is reversed. We remand to the
trial court with instructions to grant Osbornes motion to suppress.
Reversed and remanded.
NAJAM, J., and MAY, J., concur.
Footnote: Oral argument was held in this case on February 24, 2004 in
Mitchell, Indiana. We would like to thank the Honorable Michael A. Robbins
for organizing this outing where we were able to interact with the faculty,
staff, and students of Mitchell High School and with the Lawrence County Bar.
We thank all for their hospitality and interest in the appellate process.
Ind. Code § 35-48-4-6.
Footnote: We commend the trial court for the depth and quality of its
findings. They have been extremely helpful in our review of this issue.
Footnote: We note that the State in oral argument attempted to raise the
argument that the police had reasonable suspicion to stop Osborne because Turner was
a reliable informant. However, the State did not argue this before the
trial court, and, as such, may not raise it now.
Friedel, 714 N.E.2d 1231, 1237 (Ind. Ct. App. 1999) (An issue cannot be
raised for the first time on appeal.). However, we observe that the
record shows that Turner had not previously provided reliable information to the police.