State v. Bulington

• Decision Date: 29 January 2004
• Docket Number: No. 79S04-0310-CR-436.,79S04-0310-CR-436.
• Citation: 802 N.E.2d 435
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. Robert BULINGTON, Appellee (Defendant below).
• Court: Indiana Supreme Court

802 N.E.2d 435

STATE of Indiana, Appellant (Plaintiff below), v. Robert BULINGTON, Appellee (Defendant below).

No. 79S04-0310-CR-436.

Supreme Court of Indiana.

January 29, 2004.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

E. Kent Moore, Lafayette, IN, Attorney for Appellee.

ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 79A04-0206-CR-261

SULLIVAN, Justice.

The police asked a Meijer Superstore to report every customer who bought three or more packages of cold medicine. Acting on such a report, the police stopped and searched defendant Robert Bulington's truck and discovered various other substances used to produce methamphetamine. He was charged with the crime of "Possession of Precursors of Methamphetamine." We affirm the trial judge's decision that there was insufficient evidence to create the reasonable suspicion necessary to justify stopping defendant's truck.

Background

The Lafayette Police Department drug task force asked Daniel Majors, a loss prevention team member at Meijer Superstore in Lafayette, to call every time Meijer loss prevention team members saw a customer select three or more boxes of cold medicine, antihistamines, or Robitussin. The police department also instructed Majors to call when a customer purchased lithium batteries, a can of fuel, duct tape, or any other precursors for the manufacture of methamphetamine. Meijer's employees were instructed to contact the police even if the customer only purchased one roll of duct tape or one can of fuel. Loss prevention team members instructed Cassie Oakley, a Meijer team leader, to watch for people looking at nasal decongestants because the medication can be used in manufacturing illegal drugs.

On December 11, 2001, at approximately 10:00 p.m., Oakley saw two men, including defendant, looking at nasal decongestants. When Oakley asked the men if she could help them, they said no. Oakley told Majors and Jason Linder, another loss prevention team member, to keep an eye on the two men. Majors watched the two using a store camera system. He saw both men each select three boxes of antihistamines and proceed to separate checkout counters. As soon as the first man left with his purchase, Majors contacted the Lafayette Police Department. Majors then observed the men walk out the store separately and go to the same truck. Majors zoomed the camera in on the men and saw that they were removing the tablets from the boxes and putting them in Meijer bags.

Three Lafayette police officers in three separate patrol cars were dispatched to the Meijer store. On the way to the store, a police dispatcher was in contact with Meijer loss prevention concerning the two men, their location and movements, and the color and type of vehicle they were driving. When the officers arrived at Meijer, the men were pulling out of the parking lot. Officer Anthony Scott McCoy stopped the truck in a parking lot located down the road from Meijer. Officer McCoy asked defendant for consent to search the truck, and defendant gave consent. Officer McCoy and Officer Cheever searched the truck and found a Meijer shopping bag containing six empty Meijer ephedrine packages, an Osco bag containing hundreds of loose ephedrine pills, and approximately six unopened foil packs with pills inside them. Officer McCoy also found a bag from a Super Target store containing starting fluid (which contained ether) and STP Gas Treatment, receipts showing other purchases for cold medicine, a plastic tube that had some tape at the end, a piece of aluminum foil that had charring at the bottom and black and white residue, and two four-packs of lithium batteries. Based on his training and experience, Officer McCoy believed that these items were to be used to manufacture methamphetamine.

The State charged defendant with Conspiracy to Commit Dealing in Methamphetamine, "Illegal Drug Lab," Maintaining a Common Nuisance, and Reckless Possession of Paraphernalia. Defendant filed a motion to suppress the items the police found in his truck and his statement. After holding a hearing, the trial court granted defendant's motion holding that the "traffic" stop was defective under the totality of the circumstances under both the United States Constitution and the Indiana Constitution since the investigatory stop was based solely on a tip made by a cooperative citizen based upon a profile (purchase of three boxes of cold medicine) and there was no crime or traffic violation committed in the officer's presence. The court also found that the State failed to meet its burden of establishing that the consent to search the vehicle was made voluntarily.

The State appealed the trial court's ruling to the Indiana Court of Appeals. A majority of the panel reversed the trial court and held that under the totality of these circumstances, the information was sufficiently reliable to provide the officer with reasonable suspicion that defendant and his companion possessed, or were about to possess, two or more chemical reagents or precursors with the intent to manufacture methamphetamine. State v. Bulington, 783 N.E.2d 338 (Ind.Ct.App. 2003). Furthermore, the court found that defendant's consent to search his truck was freely and voluntarily given, thus the search was valid under the Fourth Amendment of the United States Constitution and reasonable under Article I, Section 11, of the Indiana Constitution. Id. at 351. Judge Darden dissented. Id. at 351. We granted transfer. 2003 WL 310486, 2003 Ind. LEXIS 818 (Ind. Oct. 2, 2003).

Discussion

The State contends that the trial court erroneously granted defendant's motion to suppress the evidence the police found in defendant's truck. The State argues that the officers had reasonable suspicion to believe that criminal activity was afoot when they stopped defendant because Meijer store employees observed defendant and his companion with six boxes of ephedrine, a precursor for methamphetamine. Defendant responds that the officers conducted an investigatory stop without reasonable suspicion in violation of the Fourth Amendment of the United States Constitution and art. I, § 11, of the Indiana Constitution.

The Court of Appeals found the police stop of defendant's vehicle passed muster under both the United States and Indiana Constitutions. As to the federal claim, we find the issue fairly debatable. The United States Supreme Court's most recent opinion in this regard has emphasized that "reviewing courts should make reasonable-suspicion determinations by look[ing] at the `totality of the circumstances' of each case to see whether the detaining officer has a `particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)

). Arvizu also stressed that federal appellate courts review trial court determinations of reasonable suspicion de novo rather than for "abuse of discretion." 534 U.S. at 273-274,

122 S.Ct. 744 (citing Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). Applying de novo review here,¹ it may be that the Fourth Amendment's mandate of reasonable suspicion is achieved. Because we find defendant clearly entitled to relief as a matter of state constitutional law, we need not resolve his federal claim.

Although art. I, § 11, of the Indiana Constitution appears to have been derived from the Fourth Amendment and shares the same language, we interpret and apply art. I, § 11, independently from Fourth Amendment jurisprudence. State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002); Mitchell v. State, 745 N.E.2d 775, 786 (Ind.2001); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.1999); Brown v. State, 653 N.E.2d 77, 78 (Ind.1995); Moran v. State, 644 N.E.2d 536, 540 (Ind.1994). Rather than looking to federal requirements such as warrants and probable cause when evaluating Section 11 claims, we place the burden on the State to show that under the totality of the circumstances its intrusion was reasonable. Baldwin, 715 N.E.2d at 337, (citing Brown, 653 N.E.2d at 79-80

).

A determination of whether there was reasonable suspicion in this case does not turn on the reliability of the informant's tip. Cf. State v. Glass, 769 N.E.2d 639 (Ind.Ct.App.2002)

(anonymous tip did not provide reasonable suspicion under Fourth Amendment for traffic stop), trans. denied 783 N.E.2d 695 (Ind.2002). It is uncontested that the police department had a previous relationship with the Meijer's loss prevention personnel, and that members of that department contacted the police and provided sufficient detail of the conduct engaged in by defendant and his companion. The question that this case poses is whether the content of the information contained in that tip was enough to provide Officer McCoy with reasonable suspicion.

We have applied this general principle of reasonable suspicion in three major cases that have some bearing on the question presented here.

In Mitchell v. State, we were asked to consider whether "pretextual" traffic stops—police stops for a minor traffic violations as a pretext to investigate drivers or vehicles for other reasons—were reasonable within the meaning of art. I, § 11. We held such stops constitutional for two reasons:

We find nothing unreasonable in permitting an officer, who may have knowledge or suspicion of unrelated criminal activity by the motorist, to nevertheless respond to an observed traffic violation. It is likewise not unreasonable for a motorist who commits a traffic law violation to be subject to accountability for said violation even if the officer may have an ulterior motive of furthering an unrelated criminal investigation.

745 N.E.2d at 787.

In Baldwin v. Reagan, we were asked to consider whether traffic stops to determine whether seat...