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Court: Drug question improper

Tossing of evidence by Allen judge is upheld

By Niki Kelly

The Journal Gazette

INDIANAPOLIS – The Indiana Court of Appeals ruled Monday that a Fort Wayne police officer violated the Indiana Constitution when he asked a man stopped for possible traffic violations whether he had any drugs on him.

The case is one of “first impression,” which means the court has not previously dealt with the issue.

According to the ruling, Raymond Washington Jr. and a friend were riding mopeds on Central Street in July 2006 when Fort Wayne police officer Chris Hoffman spotted them.

The officer said the mopeds were swerving over the center point of the road, though the street did not have a centerline markings. Hoffman also believed Washington – then 27 – to be younger than 18. Indiana law requires those younger than 18 to wear goggles and a helmet, which Washington was not.

Washington stopped immediately after Hoffman “blurped” his siren a few times. The second driver traveled around Hoffman’s car before another officer arrived and stopped him as well.

During the stop, Hoffman asked Washington whether he had any guns, drugs or anything that might harm the officer. Washington answered that he had marijuana in his front pocket and was arrested and charged with misdemeanor drug possession.

Allen Superior Court Magistrate Robert Ross tossed out the marijuana as evidence, saying the officer violated the state’s constitutional protections against unreasonable search and seizure.

According to Monday’s appellate court ruling, Hoffman claimed Washington was acting nervous during the traffic stop, including not making eye contact with him.

But the appeals court said that wasn’t enough to justify the question.

“Because it is not at all unusual that a citizen may become nervous when confronted by law enforcement officials, other evidence that a person may be engaged in criminal activity must accompany nervousness before the nervousness will evoke suspicion necessary to support detention,” the decision said.

Several times in the 2-1 opinion, the judges mentioned the increasing practice of officers stopping vehicles for minor traffic offenses and asking about the presence of illegal substances.

The ruling upholds the rights of officers to ask about weapons out of concern for officer safety.

But the court found Hoffman’s inquiry about drugs in this case – in which there were no indication of drugs or other criminal activity – was not related to the purpose of the stop or to officer safety.

“While we concede that Officer Hoffman’s inquiry was minimal in terms of duration, it nevertheless extended the duration of the stop,” the decision said. “Of greater significance, however, is the fact that to allow police to routinely question individuals during a traffic stop about the presence of drugs would open the door to all sorts of inquiries, including whether the person cheated on his last year’s tax return or had in the past illegally pirated music from the Internet. While tax fraud and Internet piracy are – like illegal drug possession – serious concerns, routine traffic stops are not the place for such inquiries.”

Messages left for Washington and his attorney, David Joley, were not immediately returned Monday afternoon. The state attorney general has 30 days to decide whether to appeal the case to the Indiana Supreme Court.

There was a dissent in the case from Judge Michael P. Barnes, who said it is reasonable for officers to ask about illegal contraband provided such questioning does not materially extend the length of the stop.

“In my view, Officer Hoffman’s question to Washington was a permissible, legitimate policing inquiry, and constitutionally sound,” he wrote.

Fort Wayne Police Department spokesman Michael Joyner said Monday that the department doesn’t require officers to ask a certain set of questions during stops, saying officers develop their own instincts depending on the circumstances and their observations.

“It gives us no reason to panic, only to reinforce documentation and articulation so we can show we are acting within the scope of the law,” he said. “Anytime we have a situation where a court rules against an officer’s actions, we certainly will bring it up and learn from it.”

nkelly@jg.net