*1 388 accurately change the law to more reflect existing law. Accord change
intent to the Farm's assertion that the ingly, State in set of cireumstances" the "real world in to ex passed "was order Amendment is sold. Id. which insurance original intention legislature's the press erro- Accordingly, the trial court did not more, is insufficient clearly," more without Farm's motion for neously deny State legisla that the presumption to rebut the summary summary judgment grant change Appel the law.4 ture intended in favor of the Estate based judgment Bennett, 14; see, e.g., lant's Brief at unin- finding its that Barbara had upon N.E.2d at 179. coverage motorist at the time of her sured legislature proof further the As reasons, foregoing For the we af- death. clarified, changed, the lan- opposed as denial of firm the trial court's State by enacting § 27-7-5-2 guage of Ind.Code summary judgment motion for Farm's Amendment, Farm the 1999 State asserts grant summаry judgment its favor of 27-7-5-2 its "(interpreting I.C. the Estate. in- require every named pre-1999 form Affirmed. reject motorist cover- sured to uninsured in which ignores the factual situation age NAJAM, FRIEDLANDER, J., and J. Brief at operates." Appellant's the statute concur. particular, argues 19. In State Farm policies customarily cov- because insurance units, family requiring every
er entire liability sign policy
named insured to the
declining coverage motorist uninsured way pur- with the insurance is
inconsistent Farm further maintains
chased. State given
that if each named insured were him- right coverage to select insurance Indiana, Appellant-Plaintiff, STATE herself, effectively it would elimi- self or possibility covering multiple nate the BULINGTON, Appellee Robert policy unless people under one insurance -Defendant. they agree upon coverage could all However, argu- be selected. none these No. 79A04-0206-CR-261. Farm's contention support ments Appeals of Indiana. Court of was enacted tо that the 1999 Amendment § 27-7-5- clarify meaning of Ind.Code Feb. 2003. fact, reasoning, just 2. In under the same opposite may Specifically, be true. legislature may have enacted § 27-7-5-2 to
Amendment to Ind.Code additionally argues 4. State that: lopsided Farm 89-5. The votes are House legisla- with the notion that consistent Amendment] The votes taken on [the clarifying, changing, ture was provide evidence that it was a clari- further meaning of the statute. fication, change. not a The amendment (internal Appellant's Brief at 17-18 citations initially passed the Senate 47-0. It was However, omitted). State Farm has offered incorporated a House bill ad- later into authority proposition. legal for this Ac- dressing no various insurance matters. This passed Senate 43-4 and argument. combined bill cordingly, we do not address *4 Carter, Attorney
Steve General of Indiana, Talbot, Monika Prekopa Deputy General, IN, Attоrney Indianapolis, Attor- neys Appellant. Moore, IN,
E. Lafayette, Attorney Kent for Appellee.
OPINION BROOK, Judge. Chief Summary Case Appellant-plaintiff ap- State of Indiana peals the trial grant court's of a motion to ephedrine. The man select three boxes Rob- by appellee-defendant filed suppress only ephedrine at purchased two men ("Bulington"). We reverse Bulington ert "proceeded to registers cash different and remand. Id. at 15. they together." weren't act like Issues pur- man left with his After the first re- single issue for raises The State chase, LPD and notified Majors called the following view, as the we restate pur- men had that the two dispatcher two: only ephedrine three boxes of chased stop of investigatory I. whether registers. cash While apiece at different proper; truck was out with in-store and observing the men freely and vol- II. whether cameras, Majors reported to the dis side to the warrant untarily consented they separately, left the store patcher of his truck. less search truck, same and removed entered put them into tablets from the boxes History and Procedural Facts bags. dispatcher si Meijer shopping Decem- p.m. 10:00 on approximately At multaneously relayed this information 11, 2001, Oakley Cassie team leader ber McCoy ("MeCoy"), who Anthony Officer Meijer in La- Superstore ("Oakley") of *5 pre training regarding the had received in standing the nasal fayette two men saw necessary to manufacture metham cursors beauty the health and decongestant area of phetamine. Meijer's loss-prevention de- department. dispatch to the McCoy responded Oakley advised previously had partment Meijer lot as the truck parking entered looking at" people of watch that are "kind the dis- to exit the lot. Via was about as methamphetamine of such the two Majors confirmed patcher, decongestants "nasal and Sudafed MeCoy in truck. followed men were the two Tr. at 6. When things that[.]" like lot, onto State parking the truck out of the assistance, of Oakley's declined offer men parking lot. and into a restaurant Road Majors Dan telephoned store detective she pulled parking truck into a After Meijer's loss-prevention de- ("Majors") emergency McCoy activated the space, him that the men and informed partment vehicle. Offi- lights on his marked "looking deconges- at the nasal were in his own marked cer Cheever arrived Id. tants[.]" vehicle, approached two officers and the County drug task force Tippecanoe the truck. Meijer employees asked previously driver, ("the spoke Bulington, with McCoy Lafayette Depаrtment Police call the LPD") "visibly "very nervous" and shak- they someone who was "every time" saw Bulington McCoy Id. at 82. asked ing[.]" more of cold "three boxes or purchase requested truck and his driver's to exit the Robitussin," medicine, antihistamines, batteries, fuel, registration. McCoy retained license and any precur- "lithium Bulington about his these items and asked methamphet- manufacture of sors for the Meijer. Bul- at purchase ephedrine of Using Id. at 11. a closed-circuit amines[.]" what she told camera, ington responded, "[TJhat's Majors one of the men select saw buy." Id. at 86. consent- quickly leave me to ephedrine three boxes of perform pat- a McCoy's request ed to Majors then saw the second the area. reagents 35-48-4-14.5(a) Ephedrine is one of the chemical 1. See Indiana Code 35-48-4-14.5(a)(1). precursors methamphetamine of listed § Ind.Code 1, 2002, person, yielded of his April down search On the trial court held a hearing on weapons. McCoy April then asked if he motion. On no 28, 2002, the trial court entered numerous truck. Bulington could search the shook detailed findings and conclusions and is- yes; McCoy his head when asked for clari- sued the following order: fication, Bulington responded that the offi- The Court finds the defendant cers could search the truck. asked was not violating any prior traffic laws Bulington to stand near Officer Bob to being pulled by over the officers on Brown, responded who had also to the this "traffic" stop. judging The Court is dispatch. the reasonableness of this investigatory truck, McCoy Meijer Inside found a stop by attempting to strike a balance bag Meijer- shopping containing empty six public between the interest and the indi- of packages ephedrine; bag brand an Osco vidual's right personal security free containing аppeared what to be hundreds from arbitrary by interference law en- milligram ephedrine pills" "one and six forcement. The Court now concludes unopened packs pills; Super foil a Tar that this "traffic" stop is defective under items, get bag containing, among other totality of the cireumstances under can an ether-containing eleven-ounce both the United States Constitution and substance;2 the Indiana a Constitution since the plastic tape tube with on inves- tigatory stop solely was based on end; tipa one of aluminum piece foil with made cooperative citizen based charring on one side and residue on the upon profile (purchase of three boxes other; four-packs and two lithium batteries.3 medicine) of cold Id. at 87-38. and where there was no crime or traffic violation committed 3, 2002, January On charged *6 in presence. the officers' The Court Bulington with B felony conspiracy Class finds the State failed to bear its burden 4 dealing methamphetamine; commit of establishing that the consent D felony possession Class of two or more search the voluntarily. vehicle was made reagents chemical or with in- The defendant's Suppress Motion to is 5 methamphetamine; tent to manufacture granted. now felony D maintaining Class a common Id. at appeals.7 60. The State now 11, 2002, February nuisance.6 On Buling- Discussion and Decision ton filed a motion to suppress the evidence MceCoy's seized as result of stop and hearing At on Bulington's search of his truck. motion to suppress, According transcript, 2. McCoy to the reagent de 3. Lithfum metal is also chemical precursor methamphetamine. "Snap starting scribed this substance as See Ind. 35-48-4-14.5(a)(8). § Code presume Tr. at We food[.]" 38. actually starting Iddings referrеd to See fluid. (dealing §§ 4. Ind.Code 35-48-4-2 ain sched- 1006, (Ind.Ct.App. v. 1011 substance), (con- ule II controlled 35-41-5-2 2002) (noting "found extensive spiracy). methamphetamine evidence of a lab" in de garage, including sixty fendant's "over cans of § 5. Ind.Code 35-48-4-14.5. fluid"), engine starting trans. denied. Ether is § 6. Ind.Code 35-48-4-13. reagent precursor another chemical methamphetamine. § See Ind.Code 35-48-4- 22, 2002, prematurely 7. On October our court 14.5(a)(10). opinion majority issued an in which a of this 344 facts, the those inferences from tional demonstrat- had the burden
the State
reasonably warranted
intrusion is
official
the measures
constitutionality of
ing the
suspi
has a reasonable
and the officer
In order
evidence.
to secure
it used
"may be
activity
that criminal
cion
must show
the State
appeal,
on
prevail
Ohio,
1, 21-22,
sup-
on the
U.S.
ruling
Terry v.
392
trial court's
afoot."
that the
(1968).
1868,
L.Ed.2d 889
20
88 S.Ct.
law. This
contrary to
motion is
pression
findings of
the factual
acсepts
suspi
court
recognize that reasonable
Cases
clearly erro-
they are
unless
concept,
trial court
abstract"
cion is a "somewhat
court's
reviewing the trial
In
neous.
"a neat set of
readily
reduced
making a reason
most
decision,
the evidence
legal rules." When
we consider
any
with
ruling together
determination, reviewing
to the
favorable
able-suspicion
uncontradicted.
that is
evidence
cir
"totality
adverse
of the
courts examine
see whether
of the case to
cumstances"
(Ind.
639,
Glass,
N.E.2d
641
v.
a "particular
detaining
officer
(citations
omit
and footnote
Ct.App.2002)
objective
suspecting
basis" for
ized and
ted),
denied.8
trams.
sus
wrongdoing. The reasonable
legal
Investigatory
Stop
I.
met where the
requirement
picion
the moment
to the officer at
facts known
propriety of
argues
The State
reasonable
with the
stop, together
investigatory stop of
McCoy's
facts, would
arising from such
inferences
Amendment of
under the Fourth
truck
ordinarily prudent person
cause
I,
Article
Constitution
United States
oc
activity has
believe that criminal
Indiana Constitution.
11 of the
occur.
curred or is about to
in turn.
argument
each
We address
omitted).
(some
at
citations
Id.
641-42
of United
A.
Amendment
Fourth
upon
States Constitution
elaborated
Burger
Chief Justice
objec
"particularized
of a
concept
to the
Amendment
The Fourth
Cortez,
States
tive basis"
United
prohibits
States Constitution
United
66 L.Ed.2d
U.S.
S.Ct.
and seizures"
"unreasonable searches
(1981):
Government,
safeguards ex
and its
justified
be
investigatory stop must
An
per
investigatory stops
to brief
tend
*7
the
objective
that
by
manifestation
some
of tradi
that fall short
sons or vehicles
be,
is,
to
stopped
or is about
person
However,
police
a
officer
arrest.
tional
activity.
in eriminal
engaged
for investi
briefly
person
detain a
may
variety
a
of terms
Courts have used
without a warrant
gatory purposes
of what
concept
the elusive
if,
capture
upon specific
cause
based
probable
police
authorize
sufficient to
with ra-
cause is
together
facts
and articulable
ruling on Bul-
court's
the United States
panel affirmed
trial
Amendment of
9. The Fourth
provides,
Constitution
suppress.
ington's
We vacated
motion to
opinion
week later.
one
their
right
people to be secure in
The
effects,
houses,
against
papers,
persons,
and
review,
stating
applicable standard of
seizures,
8. In
shall
and
unreasonable
searches
opinion this court's
violated,
relies on
shall
is-
and no Warrants
not be
cause,
sue,
supported by
upon probable
State,
but
(Ind.Ct.App.
N.E.2d 762
v.
Lockett
affirmation,
1999),
subsequеntly
particularly de-
and
supreme
our
court
Oath or
which
searched,
State,
and
scribing
place
to be
v.
747 N.E.2d
vacated.
See Lockett
places
things
be seized.
(Ind.2001).
stop
person. Terms like "articulable
picture
yield particularized
must
suspi-
suspicion" and
suspicion"
"founded
are
cion is the
that
concept
process
just
self-defining; they
fall
pro-
short of
described
a suspicion
must raise
that the
viding
guidance
clear
dispositive of the
particular
being
individual
stopped is en-
myriad factual
situations
arise.
gaged in wrongdoing. Chief Justice
But the
all
essence of
that has been Warren, speaking for the Court in Terry
totality
written is that the
of the circum-
Ohio,
that,
swpra,
said
"[this demand
picture-must
stances-the whole
be
for
specificity
upon
information
taken into account.
upon
Based
police
predicated
action is
is the
picture
whоle
detaining
officers must
central teaching
this Court's Fourth
a particularized
objective
have
and
basis
jurisprudence."
Amendment
suspecting
particular
person
417-418,
(footnote
Id. at
347
totality
Under
of these circum
[who alerted
dispatcher]
was a con
stances,
Majors's
we conclude that
citizen,
infor
cerned
prankster,
or an impost
sufficiently
mation
provide
reliable to
Further,
er.
we cannot discern whether
suspicion
with reasonable
that Bul-
the caller identified himself in
way
such a
were,
ington
companion
and his
or were
place
as to
credibility
his
at risk or to
be,
about to
engaged
criminal activity,
subject himself to criminal penalties.") and
i.e.,
companion pos
his
Washington
1241,
sessed, or were about
possess,
to
two or
1243-46 (Ind.Ct.App.2000) (holding that of
more chemical reagents
with ficer did not have
suspicion
reasonable
to
the intent
to
methamphet
manufacture
stop "possible drunk driver" without per
Compare
Eichholtz,
amine.
State v.
752 sonally observing "evidence of drunken or
N.E.2d
(Ind.Ct.App.2001)
(holding erratic driving" where
solely
officer relied
that officer had
suspicion
reasonable
to
tip
on
from anonymous informant who
stop intoxicated driver without personally
gave description, direction, and license
observing
driving
erratic
or traffic viola
car;
plate number of
accordingly
"We
hold
eyewitness
tions where
following driver
that an anonymous telephone tip, absent
gave
description
name and
of his car to
any independent
indicia of reliability or
dispatcher;
eyewitness]
"[The
identified
any officer-observed confirmation of the
himself to the
operator
9-1-1
in a manner
prediction
caller's
of the defendant's future
that he
legally
could be held
responsible if behavior,
enough
is nоt
permit police
[the
investigation
officer's]
indicated that
detain a
subject
citizen and
him or her to a
eyewitness]
{the
filed a
police
false
re Terry stop and the attendant interruption
port.") and Bogetti,
cireumstances howev Having reached this was behavior deeply whether er, determine that we are admit we must to bear require "policies" reasonable. We store by unwritten troubled that, totality in the showing of arbitrary quantity the burden seemingly specifying cireumstances, items that customers the intrusion household of certain State, 745 N.E.2d Mitchell suspi reasonable." under coming without may purchase (citations (Ind.2001) quotation troubled similarly 775, 786 are cion. We omitted). from acting tips on of authorities prospect marks store overly zealous trained improperly reiterate, informa McCoy received To spreading investigating employees both employee that Meijer tion from manufactu methamphetamine scourge of pur companion and his 14at re.17 ephedrine only three boxes of chased authorities; of Majors boxes alert the prompted characterizes six 14. The State have more, however, the sub- "large quantity" of neces- ephedrine as a it would not without suspicion is no basis of Appellee's sarily give at 6. There a reasonable Br. rise to stance. concluding that six boxes justify an inves- activity in the record sufficient criminal quantity of tablets containing an unknown stop. Nothing prohibit would offi- tigatory ephedrine of concentration with an unknown cer, however, conducting a less intrusive from ephedrine. The criti- "large quantity" of is a ephed- whether the investigation to determine analysis the reasonable- our is cal factor in subsequently purchase might purchaser rine Bulington and his ness of the inference with the at other stores additional existence suspected the companion knew or methamphetamine. intent to manufacture alerting policy authorities to Meijer's metham- quantity of purchasе a certain hearing, Majors ac- suppression 16. At the they attempt- phetamine precursors and if a call the LPD knowledged that he would ephedrine in a manner purchase the ed to propane only one tank of purchased customer suspicion. calculated to avoid tape. id. at 21-22. duct See fuel or pur- with the concerned here 15. We are not Drug Intecuicence by single ephedrine Nationat CENTER 17. See of three boxes chase Drug Inpiana 2001) (April Assessment TerEar exits the simply enters and who customer increasing, might well purchase ("Methamphetamine production Such a store alone. *11 Nevertheless, that, we cannot ignore un- rights of guaranteed Hoosiers by the state like illegal drugs derived from coca federal or constitutions.
opium, methamphetamine can
easily
be
II. Consent
to Search Truck
manufactured using raw materials and
We now address the legality of
(with
equipment
exception
of an- McCoy's search
truck.
ammonia)
hydrous
readily
are
available
the Fourth Amendment and Article
Both
in any drugstore
general
or
retail store.19 I,
11 protect
against unreasonable
As a consequence, thousands
purchases
effects,
searches of a person's
including
of otherwise "innocent" household
items
automobiles.
See Ammons v.
quantities
certain
and combinations that
927,
N.E.2d
930-31 (Ind.Ct.App.2002),
onee would have been made without notice
trans. denied. Under the Fourth Amend
or comment now result in heightened sur- ment, "[a] search conducted without a war
veillance and criminal
investigation.20 rant issued upon probable cause
per
is
se
Faced with
disturbingly
Orwellian unreasonable." State v. Jorgensen, 526
reality, both the courts and the civil au
1004,
(citing
N.E.2d
1005 (Ind.Ct.App.1988)
thorities must ensure that Indiana's laws
Bustamonte,
hneckloth
412 U.S.
Sc
against methamphetamine manufacture
218,
2041,
(1973)).
93 S.Ct.
ties"), ht tp://www.thestarpress.com/tsp/mac- needed."), training http;y//www.us- 071 5sermethlabday1.php. ros/series/stories/ doj.gov/dea/pubs/pressrel/methfact01 .html. Slabaugh, 18. See Seth Meth labs a threat to According Majоrs, 20. the LPD EMTs, police, firefighters, THrmStarPress.Com (Muncie, Indiana) 16, 2001) (July (noting that subject stated if like a selected like two only product methamphetamine used maybe just boxes or couple things manufacturers "that isn't available in stores is fuel, tape just duct sys- to-our camera ammonia, liquid anhydrous agricultural picture tem at the store can take their fertilizer."), http://thestarpress.com/tsp/ mac- just picture to take their and document it 0716sermethlabs2.php. "An- ros/series/stories/ message and then leave a on their answer- hydrous (as ammonia or ammonia ing solution they usually machine and then come in 22-11-20-1)" defined in IC are listed as subject and saw what the looked like and reagents chemical of metham- stuff like that. phetamine under Indiana Code Section 35- Tr. at 11-12. except valid search is A consent excep established specifically One duress, *12 fraud, procurеd it is a war of both requirements where to the tions intimidation, merely it fear, that is is is a search or where cause probable rant and of the supremacy to the a (cita submission Id. to consent." pursuant conducted of waiver a valid To constitute law. omitted). seeks the State "When tion a consent rights, Amendment a warrantless Fourth justify rely upon consent of relinquishment intelligent must be the that search, proving of the burden it has Such privilege. right a known fact, volun was, freely and in consent the. presumed conclusively cannot be waiver of The voluntariness tarily given. un- of assent expression from a verbal fact to be question of is a to search consent determines, cireum- from the to- totality of the from the the court less determined cireumstances, ver- that the tality of the 719 N.E.2d v. stances." Callahan understanding, bal assent (citation reflected omit (Ind.Ct.App.1999) uncoerсed, election unequivocal and ted). the which a license the officers grant Constitution, | the Indiana "Under effec- may freely be and knows person was that search must show the State right the Knowledge of tively withheld. totality of light of the reasonable one factor a search is to refuse the Ammons, at 770 N.E.2d cireamstances." voluntariness. indicates (citation omitted); see also Baldwin the cirenmstances" "totality of (Ind.1999) 332, 337 Reagan, 715 N.E.2d a de- of the voluntariness from which like ("Rather concepts employ federal than is to be determined consent tainee's probable and requirement the warrant to, fol- includes, limited the but is not of analyzing requirement [in cause claims (1) the whether lowing considerations: the under seizure violations and search his Miranda advised of was defendant Constitution], instead require we Indiana search; request to the rights prior showing the burden оf bear that (2) education degree defendant's of cireumstances, that, totality of the in the (8) the de- whether intelligence; and reasonable."). was the intrusion right not to of his was advised fendant (4) consent; has the detainee whether that in its order note We en- with law encounters previous suppress, motion to Bulington's granting (5) forcement; officer whether it specify whether trial court did of implied any express made claims his the search of propriety reviewed consent; without authority to search or the federal consti the state truck under (6) engaged officer was whether sepa offer the State tution. Neither does request; to the prior action any illegal analy- and federal constitutional rate state (7) cooper- defendant was whether that we brief. Given appellate in its ses (8) whether previously; ative cireum- totality of the must consider true as to deceptive his officer Bulington's consent surrounding stances of the search. purpose or the identity we branch under either jurisprudence, (citations Callahan, at a defen to which that search conclude omitted). is val voluntarily consents freely and dant three undisputed is The evidence of the Amendment the Fourth id under police vehicles and three officers and reasonable Constitution United States stop; seene of at the present were I, the Indiana under Article rea- Bulington McCoy had informed Constitution. stop son for the performed a consen- this issue contrary to law. We therefore patdown sual search of person; his grant reverse its motion to had asked for and retained suppress and remand for proceed- further Bulington's driver's license and registra- ings. tion.21 When McCoy asked for Bulington's Reversed and remanded. truck, consent to search the "yes". shook his head Tr. at 36. When KIRSCH, J., concurs. McCoy sought clarify the meaning of *13 response, Bulington yes "said that DARDEN, J., dissents with opinion. [MeCoy] could search his vehicle." Id. at DARDEN, Judge, dissenting. totality 52. The of these cireumstances indicates that Bulington's consent was not I dissent, would respectfully as I find it procured fraud, duress, fear, by or intimi greatly disturbing that the simple pur dation and was not merely a submission to chase of more than one package of cold 23 law; the supremacy of the that Bulington medication subject could a citizen to an need not have been advised of his Mi investigatory stop by law enforcement. rights randa subjected because he was not The argues that the stop per- was to custodialinterrogation;22 that none of missible because Officer McCoy had rea- any officers made express or implied suspicion sonable of criminal based activity authority claims of to search without con upon report by Majors that the two sent; that McCoy had not engaged any men had each bought three packages of illegal action prior to the request; that ephedrine. The State specifically argues there was no indication Bulington that had that it was the "large quantity" of the been uncooperative; and that was methamphetamine precursor ephedrine not deceptive as to identity his true or the purchased was that created the rea- purpose of the search. Lyons, See 735 sonable suspicion. State's Br. at 6. How- N.E.2d at 1185. The record is silent with ever, beyond the fact that there were three respect to the remaining considerations packages of ephedrine, there is no evi- Lyons mentioned clearly but indicates as quantity. dence to the Bulington's that We do not consent to the search know what were, size packages his truck these freely eg. was and con- voluntarily given taining and that pills the search twelve or forty-eight was therefore pills valid each, under the Fourth Amendment of the there was no testimony Unit as to the ed States Constitution and If, reasonable un recommended dosage of these pills I, der Article Section 11 of the Indiana hypothetically, the packages contained Constitution. The trial ruling each, court's on pills twelve to be taken every four McCoy's 21. Because detention of required give not warnings to Miranda unless custody defendant subject is 'both in investigatory an from the outset, stop State, Finger reliance on v. ")(citation interrogation|[ omitted), to ]' trans. N.E.2d 207 (Ind.Ct.App.2002), petition for denied. 27, 2002), filed, (Sept. trans. misplaced is with respect argument McCoy's his that reten- 23. The record Meijer indicates that clerk tion of registration his driver's license and testified looking that the men were at "nasal may transformed "what have been a consen- decongestants," Majors testified that one illegal sual encounter" investigatory into "an bought man "cold medicine" and the second stop[.]" Appellee's Br. at 14. (Tr. 15). bought "antihistamine." Officer McCoy testified that he had been informed State, 52, (Ind. 22. See Green v. 753 N.E.2d that purchased ephedrine. the men Ct.App.2001) (noting "police officers are interference arbitrary free from security family with had a hours, man and each 60). See (App. sick, purchase law enforcement." individuals several Glass, N.E.2d at 641. amount would apiece packages three behavior.24 suspicious criminally 11, Article Under Constitution, stop investigatory Indiana reason- it was finds that majority reasonably sus if officer permissible men the two infer that McCoy to able in, or engaged "is the individual pects the exis- suspected of, might have knew in, activity." illegal engage about alerting police of, policy of the store tence (Ind. Mitchell quantities of "certain purchase upon if the 2001). suspicion exists "Reasonable methamphetamine combinations and/or officer, with together known to facts attempted they and that there arising inferences reasonable in a manner precursor such one purchase ordinarily prudent from, cause an would at 346. suspicion." Op. avoid calculated activity" eriminal to believe person infer- a reasonable this to be not find I do *14 Id. at to occur. or is about occurred has the bought men ence, as the inasmuch that the argues again The State 786-87. suspi- had been deemed quantity the informa based on was reasonable stop of authori- notification prompted and cious possession in men "were that the two tion reason- arguably have been might It ties. precur a ephedrine, of quantity large aof bought only the men infer had to so able Br. at State's methamphetamine." sor each,. Never- medication of packages two I find the reasons For the same 6. in the criminal stat- theless, nothing I find having McCoy for by articulated evidence which would law in the common utes or jus to be insufficient stopped cold of purchase find that me to lead the Fourth under stop permissible a tify sus- the reasonable support medicine could Constitution, I to the U.S. Amendment thereby war- activity and of criminal picion war does not the evidence also find would Therefore, in stop. investigatory rant an 11, Article under stop rant not here does the evidence my opinion, thе Indiana Constitution. of the trial court's opposite to a result lead stop was contends Finally, the State facts articulated conclusion-that duty a McCoy had official not warrant because McCoy did required knownto Majors, cit- from information confirm "right personal intrusion on limiting the number any to three the record indicates law note that aware 24. I further legally person could Meijer personnel ephedrine packages when was to be called LPD (Tr. 46). why boxes or more asked he purchase "three When purchase. saw someone antihistamines, medicine, was the Bulington, that it he testified Robitus- stopped of cold Thus, 11). suffering (Tr. if one was having sin...." report men Meijer about store Robitussin, an- bought an and symptoms cold and "that amount" "purchased the maximum spray, un- product, and throat tihistamine suspicious acting manner." they were person would be majority opinion that der the However, 32). (Tr. McCoy provided no testi- stop by law en- investigatory subject an action, suspicious any reported mony about conducted here. as was forcement such testify had witnessed that he he did not Bulington and his by suspicious action any suppress, hearing on the motion At the 25. Furthermore, Majors did tes- passenger. dispatched on a that he was McCoy testified by any suspicious act having reported tify to purchased the who "had report of two men pur- three-package than the Bulington other 32). (Tr. ephedrine." amount maximum hearing at the McCoy conceded also chase. by maximum meant "the what was Asked violation no traffic had been answered, that there amount," per "three boxes stop. for a traffic had no basis that he was not that he person," then testified but (52 Eichholiz, ing State v. N.E.2d 163 Hichholtz, In ENTERPRISES,
(Ind.Ct.App.2001). WORMAN INC., a citizen gave рlate the license number and descrip- Appellant-Defendant, tion of a vehicle which reported he to the operator crossing as into the opposite lane of traffic driving onto curbs. We THE BOONE COUNTY SOLID
held that because the citizen identified WASTE MANAGEMENT DIS himself to the 911 operator such that he TRICT, Appellee-Plaintiff. could have been held legally responsible for having filed a false report, it was No. 06A01-0206-CV-202. sufficient to justify an investigatory stop by police. Eichholtz, In report- actions Court of Appeals of Indiana. true, ed to police, if constituted fllegal Feb. 2003. conduct. If the actions had been observed officer, the officer could have execut- ed an investigatory However, here, stop.
what reported to the police was not
illegal conduct. McCoy testified, As no proscribes
law purchase pack- three
ages of ephedrine; even if McCoy had
observed Bulington make purchase,
my opinion he would not have had suffi- grounds
client for an investigatory stop solely
based thereon.
Finally, the State contends that
search of Bulington's truck legal was "be- Bulington
cause freely and voluntarily con-
sented to the search" having after been
stopped by MceCoyfor "a brief investiga-
tion based on reasonable suspicion."
State's Br. at 8. I would not reach this
argument because I would find
McCoy's initial stop of Bulington was ille-
gal-as it was not based on reasonable Thus,
suspicion. my because in opinion subject seizure, to an illegal derivatively evidence gained aas result
of that seizure should be excluded as the
"fruit" seizure, of that illegal or "fruit of poisonous tree." See Hanna v. 389 (Ind.Ct.App.2000).
Accordingly, I would affirm the trial
court.