– An officer saw a parked vehicle with several men standing around it. Δ was a passenger in the vehicle. When the men saw the police, some of them walked away. Several vehicles pulled up to the stopped vehicle and people walked back and forth between the vehicles. The officer did not see anything exchanged and merely observed conversing between the men. The officer pulled up alongside the parked vehicle, and the men standing around the vehicle dispersed.  The officer asked the driver and Δ for ID. Δ exited the vehicle and began walking away. The officer ordered Δ to stop. Δ stopped, turned around, and placed both of his hands on the roof of the vehicle. When the officer approached, Δ walked around the vehicle in the opposite direction and then ran. The officer chased Δ and continuously ordered him to stop. The officer tackled Δ and both fell. Δ broke free by pushing the officer away. Δ continued to run and was tazed. A pat down search was performed, which revealed a handgun. Δ was charged with Resist by Force, Resist by Flight, and Handgun No License. After being convicted on all 3 charges, Δ appealed. Cole v. State, 878 N.E.2d 882 (Ind. App. 2007).

– “In Terry v. Ohio, the United States Supreme Court held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when, based on a totality of the circumstances, the officer has a reasonable, articulable suspicion that criminal activity is afoot. A Terry stop is a lesser intrusion on the person than an arrest and may include a request to see identification and inquiry necessary to confirm or dispel the officer’s suspicions.” The officer did not observe any items exchanged during the fifteen to twenty minute time period. The officer only saw the men conversing with the various persons. “We doubt the propriety of the investigatory stop.” Although the officer may not have had reasonable suspicion, he did have probable cause to believe that Cole committed resisting law enforcement by fleeing. Because there was probable cause for this arrest, the handgun was seized incident to a lawful arrest. Not all evidence is fruit of the poisonous tree. In some situations, the causal chain is sufficiently attenuated to dissipate the taint of the illegal stop. Three factors are analyzed: “(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. The important consideration in the third factor is whether the evidence came from the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” The flight and force used against the officer were intervening acts that purged the taint from the unconstitutional investigatory stop. Because the arrest was lawful, the handgun can not be suppressed. All convictions are affirmed.

– “Under the Fourth Amendment, the inevitable discovery exception to the exclusionary rule permits the introduction of evidence that eventually would have been located had there been no error, for in that instance there is no nexus sufficient to provide a taint. However, the inevitable discovery exception has not been adopted as a matter of Indiana constitutional law. Our state supreme court has previously held that “our state constitution mandates that the evidence found as a result of [an unconstitutional] search be suppressed.” (quoting Brown v. State, 653 N.E.2d at 80). In light of this clear language we are not inclined to adopt the inevitable discovery rule as Indiana constitutional law. Accordingly, the inevitable discovery doctrine is not available.”  Ammons v. State, 770 N.E.2d 927 (Ind. App. 2002).

– “The inevitable discovery exception has not been adopted as a matter of Indiana constitutional law, and the State does not advance any support for such an exception in this appeal. Until the inevitable discovery exception is adopted, we must proceed on an item-by-item basis to determine what items must be suppressed as the result of an illegal search.”  Shultz v. State, 742 N.E.2d 961 (Ind. App. 2001).


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