– Where the actions of the police are outrageously dangerous, such as encouraging 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).

– 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 seen 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.”  State v. McCaa, 963 N.E.2d 24 (Ind. Ct. App. 2012)

 

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