Bush v. State Of Ind.

• Decision Date: 06 July 2010
• Docket Number: No. 49A02-0907-CR-682.,49A02-0907-CR-682.
• Citation: 929 N.E.2d 897
• Parties: Derrick BUSH, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

929 N.E.2d 897

Derrick BUSH, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0907-CR-682.

Court of Appeals of Indiana.

July 6, 2010.

Barbara J. Simmons, Oldenburg, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Stephen Tesmer, James E. Porter, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

The State petitions this court for rehearing of our opinion dated April 27, 2010. In that opinion, we held the canine sniff and resulting warrantless search of Derrick Bush's automobile violated the Fourth Amendment because the State did not meet its burden of showing the traffic stop was not unreasonably prolonged or there was independent reasonable suspicion to justify the canine sniff. Bush v. State, 925 N.E.2d 787, 791-92 (Ind.Ct.App.2010). In its petition for rehearing, the State argues this ground for reversal was waived because: 1) Bush did not argue to the trial court that his detention was unreasonably prolonged; and 2) Bush's appellant's brief did not address the duration of his detention or the legality of the canine sniff. We grant rehearing for the purpose of clarifying the procedural history of this case and addressing the State's claim of waiver, but in all other respects affirm our original opinion.

At trial, Bush repeatedly objected to admission of evidence of the handgun, arguing it was obtained through search and seizure unlawful under the United States and Indiana Constitutions. It is well settled that a party may not object to the admission of evidence “on one ground at trial and seek reversal on appeal using a different ground.” Malone v. State, 700 N.E.2d 780, 784 (Ind.1998). Bush's most specific objection to evidence of the handgun was as follows:

I don't think that the officers ... have reasonable suspicion.... to search the car given the fact that they had to call for backup, they detained it.... Numerous case law says that there has to be reasonable suspicion to do a dog sniff of the car, to which nothing was articulated as for the reasonable suspicion to do the dog sniff. The fact that the passenger had a warrant out for his arrest has nothing to do with if there's any ... evidence of crimes within the car. That's just not enough, your Honor, and ... the fact that they detained [Bush], called the canine unit to do a dog sniff, violated [Bush]'s rights under the U.S. Constitution of Fourth Amendment rights and under the Indiana Constitution, Article One, Section Eleven....

Transcript at 32. Bush's objection referred not only to the lack of reasonable suspicion but also to Bush's detention, thereby raising the issue of whether the detention was unreasonably prolonged. We conclude the trial 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) (concluding search and seizure issue was not waived when appellant's “argument on appeal [was] naturally more detailed than that raised at the spur of the moment during the trial, but it [was] the same argument”).

On appeal, Bush also argued the warrantless automobile search violated the Fourth Amendment and Article 1, section 11. Bush's appellant's brief cited the general Fourth Amendment rule against warrantless searches and contended that, based on Arizona v. Gant, --- U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (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 cite or discuss Gant but contended the applicable exception was probable cause as supplied by the positive alert of the drug-detecting canine, citing Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). At oral argument, Bush replied to the State's contention by contending the...