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State v. Cunningham

Supreme Court of Indiana

March 2, 2015


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Appeal from the Dubois Superior Court, No. 19D01-1305-FD-460. The Honorable Mark R. McConnell, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 19A05-1310-CR-489.

ATTORNEYS FOR APPELLANT: Gregory F. Zoeller, Attorney General of Indiana; Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: Steven E. Ripstra, Ripstra Law Office, Jasper, Indiana.

Rush, Chief Justice. Dickson, David, and Massa, JJ., concur. Rucker, J., dissents with separate opinion.


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Rush, Chief Justice.

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

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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.

Facts and Procedural History

At about midnight on May 17, 2013, police pulled over Defendant Michael Cunningham for a traffic stop. One of his taillights was broken, " emitting a glaring or blinding light" because the red lens was completely gone. The officer described the broken taillight to Defendant, who said that " he knew the . . . lens had been cracked, but he didn't realize . . . it was missing," and he " asked if he could exit the vehicle to look at it." The officer told Defendant " that was fine but I would pat him down for any weapons just for officer safety issue [ sic ]," and Defendant " said that was fine" and exited the vehicle.

At that point, Defendant submitted to a pat-down. He had no weapons, but the officer recognized by feel that there was a pill bottle in Defendant's right front pocket. The officer asked what was in the bottle, and Defendant admitted that it contained marijuana and took the bottle out of his pocket. The officer then asked Defendant about " anything else on his person," and Defendant admitted he had a pipe in his truck and offered to go get it. After giving Defendant his Miranda warnings, the officer asked him to retrieve the pipe. But in response to further questions about the source of the marijuana, Defendant's " reply was if he was going to jail tonight, he wasn't going to answer any further questions." Nevertheless, Defendant was " very much" cooperative during the traffic stop.

Defendant was arrested and charged with possession of marijuana and possession of paraphernalia as Class A misdemeanors, as well as Class D felony enhancements of each offense based on his prior convictions. He then moved to suppress both the pill bottle and the pipe on two grounds: first, the traffic stop was invalid because even with the missing lens, both taillights had working bulbs and thus served their purpose of signaling when the truck was slowing down; and second, even if the stop was valid, the pat-down was not because Defendant consented only to a search for weapons, and the officer knew by feel that the object in Defendant's pocket was merely a pill bottle. The trial court granted suppression, reading Indiana Code section 9-19-6-4 to require only one red taillight, finding no requirement that " only red light" be visible--thus holding the traffic stop invalid without considering whether consent was valid. The State appealed.

A divided panel of the Court of Appeals affirmed on different grounds in a published decision. State v. Cunningham, 4 N.E.3d 800 (Ind.Ct.App. 2014). The panel unanimously reversed the trial court's analysis of the taillight statute, because under Indiana Code section 9-19-6-4(c) (2010), vehicles manufactured after 1956, like Defendant's truck, must have two red taillights, not just one.[1] Id. at 804, 807. But the majority accepted Defendant's alternative argument on appeal that his consent to the pat-down " was invalid because it was merely acquiescence to police actions and directions." Id. at 805 (internal

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quotation marks omitted). The majority reasoned that because a non-consensual pat-down requires particularized " reasonable suspicion" of danger, and the officer had no such suspicion here, he could not require a pat-down as a condition of allowing Defendant to leave his truck. Id. at 805--06. Instead, the majority concluded, if the officer " believed it was more dangerous for [Defendant] to be outside of his vehicle than inside of it, he could have taken the less-invasive step of ordering him to stay inside" instead of " g[iving] an ultimatum" that leaving the truck would require a pat-down. Id. at 806.

But Judge Brown dissented on this point, reasoning that since police may order occupants to stay in a vehicle during a traffic stop, they could properly give conditional permission to get out. And because there was no need to exit the truck in that moment--Defendant could have inspected the taillight after the stop was complete--his statement that a pat-down was " fine," and his choice to get out knowing that a pat-down would result, were voluntary and not coerced. Id. at 807.

The State sought transfer, arguing that a choice between being patted down as a condition of exiting one's vehicle, or else remaining in the ...

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