Cash v. State

• Decision Date: 18 June 1992
• Docket Number: No. 67A01-9111-CR-331,67A01-9111-CR-331
• Parties: Bradley CASH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1267

593 N.E.2d 1267

Bradley CASH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 67A01-9111-CR-331.

Court of Appeals of Indiana First District.

June 18, 1992.

William Bracken, Greencastle, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

ROBERTSON, Judge.

Bradley Cash appeals his conviction of possession of marijuana, a class A misdemeanor. Cash argues that the trial court erroneously denied his motion to suppress and overruled his objection to the introduction of evidence obtained from a search of his person incident to a stop for a traffic violation. Cash contends the seizure was merely a pretext to look for other evidence of criminal wrongdoing and violated the Fourth and Fourteenth Amendments of the United States Constitution. We agree with Cash that the officer who stopped Cash's vehicle did not have an objectively reasonable suspicion, based upon specific and articulable facts, that Cash had committed a traffic violation. Accordingly, and because the evidence acquired during the search was critical to the State's proof of possession of marijuana, we reverse Cash's conviction.

The record reflects that Indiana State Police Trooper Fajt stopped Cash on the afternoon of December 24, 1990 because Cash's license plate "did not look secure." Fajt testified that he was driving south on U.S. 231 when Cash who was traveling in a northerly direction passed him. Fajt looked in his rearview mirror as Cash's vehicle passed and observed that Cash's license plate was off-center. After Fajt turned around and began following Cash's vehicle, he noticed that the plate was fastened by a single bolt and "did not look secure." He then proceeded to stop the vehicle.

When asked specifically, at the hearing on Cash's motion to suppress and subsequently at trial, what about the plate was not secure, Trooper Fajt repeatedly stated that the plate did not look secure because it had only one bolt through it. The officer expounded:

The way the license plate was supposed to be secured to the bumper, it has at least two holes in the top of the ... and the plate was supposed to be centered with the gasoline tank itself covering it up. The plate, however, was fastened to the bumper with only a single bolt. The bolt passed through the top right corner of the license plate and that was attached to the left top hole of the bumper and there would be another hole over here where the plate should have been centered.

(R. 295). Cash's license plate "did not flop while [Fajt] was following him" and was in a horizontal position, though off-center. It was not affixed to a specially-made license plate bracket but directly to the vehicle's bumper. Trooper Fajt had never before stopped a vehicle because the license plate had been secured by a single bolt though he had issued citations because license plates had not been securely fastened.

Cash exited his vehicle immediately upon stopping; and, as he encountered Trooper Fajt, the trooper smelled burnt marijuana about Cash's person. Trooper Fajt did not check to see whether Cash's license plate was in fact fastened securely to the bumper of Cash's vehicle but directed Cash to sit with him in the front seat of his commission where he proceeded to write Cash a warning ticket for the license plate. While in close proximity to Cash, Trooper Fajt again smelled marijuana, and questioned Cash whether he had been smoking the substance. After Cash left the trooper's commission, the trooper searched Cash and found on his person, in one of the pockets of his coveralls, the green substance which the State introduced in support of its possession charge. ¹

Under the fourth amendment, a police officer who lacks probable cause but whose observations lead him reasonably to suspect that a particular person is committing a crime may detain that person briefly in order to investigate the circumstances that provoke suspicion. U.S. v. Brignoni-Ponce (1975), 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607. Accord, Poling v. State (1987), Ind., 515 N.E.2d 1074. Although stopping a car and detaining its occupant constitutes a seizure within the meaning of the fourth amendment, the governmental interest in investigating an officer's reasonable suspicion, based on specific and articulable facts, may outweigh the fourth amendment interest of the occupant in remaining secure from the intrusion. U.S. v. Hensley (1985), 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604.

State v. Pease (1988), Ind.App., 531 N.E.2d 1207, 1210.

It is the requirement of reasonable suspicion which strikes the balance between the government's legitimate interest in traffic safety and an individual's reasonable expectation of privacy. Reasonable suspicion entails some minimum level of objective evidentiary justification. Delaware v. Prouse (1979), 440 U.S. 648, 655, 99 S.Ct. 1391, 1397, 59 L.Ed.2d 660. Due weight must be given, not to the officer's inchoate and unparticularized suspicion or "hunch" but to the specific reasonable inferences which the officer is entitled to draw from the facts in light of his experience. Terry v....