Suppression Based on Unreasonable or Dangerous Actions on the Part of the Police

If you are in need of a top rated criminal defense attorney in Indiana, call me at 317-695-7700 for a free consultation or email me. I have been a criminal attorney in Indiana for my entire legal career, with nearly two decades of experience, and taught criminal law at the Indiana University School of Law. I have extensive experience with Indiana and US Suppression Law and taught Suppression as part of my course at the law school. Suppression based on on “Unreasonable or Dangerous Actions on the Part of the Police” is specific to Indiana law and Article 1 Section 11 of the Indiana Constitution. For example, when police officers encourage a person to violate home detention and to exceed the speed limit while intoxicated, the police behavior is per se unreasonable and any stop or seizure violates article I, section 11. Osborne v. State, 805 N.E.2d 435 (Ind.Ct.App. 2004). Below, we will look at how evidence can be suppressed when law enforcement takes actions that are either unreasonable or dangerous.  

 The Constitutional Framework: Article 1, Section 11 of the Indiana Constitution

Before delving into specific precedents, it is essential to ground our analysis in the constitutional text. Article 1, Section 11 of the Indiana Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” Unlike the Fourth Amendment to the U.S. Constitution, which focuses on expectations of privacy, Indiana courts interpret Section 11 through a lens of reasonableness under the totality of the circumstances. This approach, articulated in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), balances three factors: (1) the degree of concern, suspicion, or knowledge that a violation has occurred; (2) the degree of intrusion; and (3) the extent of law enforcement needs. When police actions veer into the unreasonable or dangerous—particularly when they create or exacerbate risks to public safety—suppression of evidence becomes a potent remedy to deter such conduct.

The Seminal Precedent: Osborne v. State (2004)

In Osborne v. State, 805 N.E.2d 435 (Ind. Ct. App. 2004), the Indiana Court of Appeals established a clear boundary for police conduct that endangers the public. The facts are instructive: Officers suspected Osborne, who was on home detention for a prior OWI conviction, of being intoxicated during a phone call. Rather than investigating safely, they directed him to drive to a police station—knowingly violating his detention terms and encouraging operation of a vehicle while impaired. En route, Osborne sped through a residential area, prompting a traffic stop where officers confirmed his intoxication.

Applying the Litchfield factors (though predating the formal articulation, the reasoning aligns), the court deemed the officers’ actions per se unreasonable. The degree of suspicion was moderate, based on slurred speech, but the intrusion—seizing Osborne after inducing the violation—was profound. Critically, law enforcement needs were minimal; safer alternatives, like dispatching an officer to Osborne’s home, existed. By creating the danger, the police undermined public safety, leading to suppression of all evidence from the stop. This holding underscores a key principle: Police may not manufacture exigent circumstances to justify intrusions, as it erodes the constitutional mandate against unreasonableness.

Distinguishing Reactive from Proactive Conduct: State v. McCaa (2012)

Building on Osborne, the court in State v. McCaa, 963 N.E.2d 24 (Ind. Ct. App. 2012), refined the analysis by distinguishing between police-created dangers and responses to existing hazards. Here, Sergeant Cothran encountered McCaa’s semi-truck blocking traffic at a fatal accident scene on U.S. 41 amid inclement weather. Observing erratic driving but no overt signs of impairment during a brief interaction, Cothran permitted McCaa to drive a short distance to a gas station to clear the roadway. A subsequent stop revealed intoxication.

The trial court suppressed the evidence, citing Osborne, but the appellate court reversed. Under the totality test, the suspicion was low, and the intrusion (a brief allowance to drive) minimal. However, law enforcement needs were high: The truck impeded emergency access, and no safe parking spots were immediately available. Unlike Osborne, where officers “created” the risk, Cothran was “reacting” to a pre-existing peril. As the court noted: “Put simply, Sergeant Cothran’s decision to allow McCaa back onto the road could have had dire consequences, and we therefore feel compelled to address that decision in light of this court’s decision in Osborne v. State. Sergeant Cothran asked McCaa about his erratic driving, and McCaa said that he had been eating his lunch and had ‘spilled [his] pop,’ which had caused him to drive off of the roadway. Tr. p. 16. Sergeant Cothran observed a sandwich wrapper and a spilled soft drink can on the floor in the cabin of the truck. During the initial encounter with McCaa, which lasted no more than one minute, Sergeant Cothran did not notice any slurred speech, glassy or bloodshot eyes, or manual dexterity problems. According to Sergeant Cothran, the truck would have been (1) in the way if it had been moved just ahead of the crash scene, (2) on the north side of a hill if it had been moved approximately one-eighth of a mile, and (3) on the south side of a hill if it had moved approximately one-half of a mile. McCaa’s truck was initially stopped in inclement weather in such a way as to block all traffic on U.S. 41 and impede access to a fatal accident site. In addition, there do not seem to have been any suitable places to stop between the accident site and the gas station. Even considering the risks involved in allowing McCaa to drive, it may have been riskier to keep the truck where it was or have it stop before reaching the gas station. The police officers in Osborne were not reacting to a dangerous situation when they allowed Turner to drive, they were creating it.

This distinction emphasizes contextual balancing: Suppression is warranted when police affirmatively endanger, but not when mitigating greater risks.

Evolutionary Developments: Post-2012 Applications and Refinements

Subsequent jurisprudence has applied and refined the Osborne-McCaa framework, often in contexts where officers permit brief vehicle movements under suspicion of impairment or orchestrate controlled operations. These cases illustrate the judiciary’s commitment to a nuanced totality-of-circumstances analysis, weighing public safety imperatives against constitutional safeguards.

Robinson v. State, 5 N.E.3d 362 (Ind. 2014): In this Indiana Supreme Court decision, officers responded to a report of a possibly impaired driver at a gas station. Upon arrival, they observed Robinson struggling with a gas pump and exhibiting signs of intoxication, such as unsteady gait and alcohol odor. To facilitate investigation without blocking the pump—a public thoroughfare—they instructed her to move her vehicle a short distance to the side of the lot. Field sobriety tests followed, confirming OWI. Robinson moved to suppress, arguing the directive mirrored Osborne‘s proactive endangerment. The Court, however, upheld admission of the evidence. Applying Litchfield‘s prongs, suspicion was high based on observations; intrusion minimal, as the relocation spanned mere feet in a controlled lot; and needs compelling to avert congestion. Unlike Osborne, no new risk was created—the vehicle was already stationary. This holding affirms that de minimis movements in response to immediate logistical hazards do not trigger suppression, prioritizing operational pragmatism.

Michael A. Coleman v. State, 166 N.E.3d 784 (Ind. Ct. App. 2021): Extending the doctrine beyond OWI to sting operations, this case involved Columbus police tips of Coleman selling modified SKS rifles. Using a reliable confidential informant (CI), Phillip Brantley, officers arranged a buy where Brantley picked up Coleman and the firearm in his trunk. To effect a safe stop, Detective Harbaugh coordinated a minor traffic infraction (failure to signal) with Officer Maddix, who pulled over Brantley. The search yielded the rifle, methamphetamine, and marijuana on Coleman. Charged as a serious violent felon in possession, Coleman sought suppression, invoking Osborne for “outrageously dangerous” orchestration. The Court of Appeals affirmed denial, distinguishing the mundane infraction from Osborne‘s high-speed pursuit inducement. Under Article 1, Section 11, the totality revealed low risk (pre-planned, low-speed violation to minimize violence in an arms deal), analogous to controlled buys upheld federally in Lewis v. United States, 385 U.S. 206 (1966). This decision cautions against overbroad application of Osborne, reserving suppression for truly egregious threats to safety.

Brione Donta Jackson v. State, No. 22A-CR-2524 (Ind. Ct. App. 2023), transfer denied (Ind. 2024): This recent interlocutory appeal exemplifies broader Section 11 scrutiny of warrantless searches precipitated by police actions. At 2:40 a.m. in a Carmel hotel lot, Officer Brian Hamilton stopped Jackson, parked and meditating, after a welfare check. Smelling burnt marijuana upon door opening, Hamilton detained and handcuffed Jackson despite his cooperation and denial of current possession. Backup arrived, and Hamilton searched the passenger compartment fruitlessly before using keys to access the trunk, uncovering a handgun in a box. As a prior carjacker, Jackson faced felony possession charges and moved to suppress. The trial court denied, affirmed by the Court of Appeals, but Chief Justice Loretta Rush dissented on transfer denial, decrying the odor’s extension to justify trunk intrusion. Under Litchfield, Rush deemed suspicion low (stale smell, no compartment finds, low-crime area); intrusion high (detention plus full search); needs minimal (cooperative subject, no exigency for marijuana probe). Though not directly “dangerous actions,” the case reinforces deterrence of overreach, urging warrants absent compelling totality justification. The Supreme Court’s silence leaves tension, inviting future clarification.