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On a rehearing petition from the state, the Indiana Court of Appeals reaffirmed today its holding in reversing a conviction
based on a traffic stop involving a canine sniff.
In Derrick
Bush v. State of Indiana, No. 49A02-0907-CR-682, the state sought rehearing of the court’s April 27, 2010,
ruling
in which the court opined the state did not meet its burden of showing a traffic stop was not unreasonably prolonged or that
there was an independent reasonable suspicion to justify the canine sniff. Derrick Bush was convicted of carrying a handgun
without a license, a Class A misdemeanor. The state argued that Bush did not argue to the trial court that his detention was
unreasonably prolonged and that his appellant’s brief did not address the duration of his detention or the legality
of the canine sniff.
The appellate court granted rehearing to clarify procedural history and to address the state’s claim of waiver. Judge
Margret Robb wrote that Bush repeatedly objected during the bench trial to the admission of evidence of the handgun and in
his objections, he referred not only to the lack of reasonable suspicion but also to his detention. That, the court wrote,
raised the issue of whether the detention was unreasonably prolonged, and the objection was sufficient to preserve the Fourth
Amendment issue for appeal, including “the dual aspects of the duration of Bush’s detention and whether there
was reasonable suspicion to expand the traffic stop by conducting a canine sniff. See Chest v. State, 922 N.E.2d
621, 624 (Ind. Ct. App. 2009).”
On appeal, Bush had argued the warrantless vehicle search violated the Fourth Amendment and Article 1, Section 11. Bush’s
brief noted that based on Arizona v. Gant, 129 S. Ct. 1710 (2009), the exception for an automobile search incident
to a recent occupant’s arrest was inapplicable to the present case. The state’s brief did not discuss Gant
but said the applicable exception was probable cause as supplied by the positive alert of the drug-detecting dog, citing
Illinois v. Caballes, 543 U.S. 405 (2005). Bush responded to this during arguments, noting the canine sniff of his
vehicle occurred after the purpose of the traffic stop was complete and therefore was not reasonable under Caballes
and all Indiana cases applying Caballes.
The State in its petition for rehearing points out that the appellate court cannot reverse on issues raised sua sponte unless
the grounds for reversal constitute fundamental error. However, Judge Robb wrote, “… we do not regard the reasonableness
of Bush’s detention and the canine sniff of his automobile as an issue raised sua sponte. The State, by not responding
in its brief to Bush’s contentions regarding Gant and instead focusing its Fourth Amendment argument on the
canine sniff as the basis for the warrantless search, impliedly consented to litigating this case on the grounds addressed
in our original opinion. It is too late for the State to switch course and insist the warrantless search issue is properly
framed only in terms of whether the search was valid under Gant. See State v. Jones, 835 N.E.2d 1002, 1004
(Ind. 2005).”
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