Attorneys for Appellant
Attorney for Appellee
Steve Carter E. Kent Moore
Attorney General of Indiana Lafayette, IN
Monika Prekopa Talbot
Deputy Attorney General
Appeal from the Tippecanoe County Superior Court,
The Honorable Donald C. Johnson, Judge
On Petition To Transfer from the Indiana Court of Appeals, No.79A04-0206-CR-261 _________________________________
January 29, 2004
On December 11, 2001, at approximately 10:00 p.m., Oakley saw two men, including
defendant, looking at nasal decongestants. When Oakley asked the men if she
could help them, they said no. Oakley told Majors and Jason Linder,
another loss prevention team member, to keep an eye on the two men.
Majors watched the two using a store camera system. He saw
both men each select three boxes of antihistamines and proceed to separate checkout
counters. As soon as the first man left with his purchase, Majors
contacted the Lafayette Police Department. Majors then observed the men walk out
the store separately and go to the same truck. Majors zoomed the
camera in on the men and saw that they were removing the tablets
from the boxes and putting them in Meijer bags.
Three Lafayette police officers in three separate patrol cars were dispatched to the
Meijer store. On the way to the store, a police dispatcher was
in contact with Meijer loss prevention concerning the two men, their location and
movements, and the color and type of vehicle they were driving. When the
officers arrived at Meijer, the men were pulling out of the parking lot.
Officer Anthony Scott McCoy stopped the truck in a parking lot located
down the road from Meijer. Officer McCoy asked defendant for consent
to search the truck, and defendant gave consent. Officer McCoy and Officer
Cheever searched the truck and found a Meijer shopping bag containing six empty
Meijer ephedrine packages, an Osco bag containing hundreds of loose ephedrine pills, and
approximately six unopened foil packs with pills inside them. Officer McCoy also
found a bag from a Super Target store containing starting fluid (which contained
ether) and STP Gas Treatment, receipts showing other purchases for cold medicine, a
plastic tube that hade some tape at the end, a piece of aluminum
foil that had charring at the bottom and black and white residue, and
two four-packs of lithium batteries. Based on his training and experience, Officer
McCoy believed that these items were to be used to manufacture methamphetamine.
The State charged defendant with Conspiracy to Commit Dealing in Methamphetamine, Illegal Drug Lab, Maintaining a Common Nuisance, and Reckless Possession of Paraphernalia. Defendant filed a motion to suppress the items the police found in his truck and his statement. After holding a hearing, the trial court granted defendants motion holding that the traffic stop was defective under the totality of the circumstances under both the United States Constitution and the Indiana Constitution since the investigatory stop was based solely on a tip made by a cooperative citizen based upon a profile (purchase of three boxes of cold medicine) and there was no crime or traffic violation committed in the officers presence. The court also found that the State failed to meet its burden of establishing that the consent to search the vehicle was made voluntarily.
The State appealed the trial courts ruling to the Indiana Court of Appeals.
A majority of the panel reversed the trial court and held that
under the totality of these circumstances, the information was sufficiently reliable to provide
the officer with reasonable suspicion that defendant and his companion possessed, or were
about to possess, two or more chemical reagents or precursors with the intent
to manufacture methamphetamine. State v. Bulington, 783 N.E.2d 338 (Ind. Ct. App.
2003). Furthermore, the court found that defendants consent to search his truck
was freely and voluntarily given, thus the search was valid under the Fourth
Amendment of the United States Constitution and reasonable under Article I, Section 11,
of the Indiana Constitution. Id. at 351. Judge Darden dissented.
Id. at 351. We granted transfer. 2003 Ind. LEXIS 818 (Ind.
Oct. 2, 2003).
The Court of Appeals found the police stop of defendant's vehicle passed muster
under both the United States and Indiana Constitutions. As to the federal
claim, we find the issue fairly debatable. The United States Supreme Courts
most recent opinion in this regard has emphasized that reviewing courts should make
reasonable-suspicion determinations by look[ing] at the totality of the circumstances of each case
to see whether the detaining officer has a particularized and objective basis for
suspecting legal wrongdoing. United States v. Arvizu, 534 U.S. 266, 273 (2002)
(quoting United States v. Cortez, 449 U.S. 411, 417-418 (1981). Arvizu also
stressed that federal appellate courts review trial court determinations of reasonable suspicion de
novo rather than for abuse of discretion. 534 U.S. at 273-274 (citing
Ornelas v. United States, 517 U.S. 690, 691 (1996). Applying de novo
See footnote it may be that the Fourth Amendments mandate of reaso
is achieved. Because we find defendant clearly entitled to relief as a
matter of state constitutional law, we need not resolve his federal claim.
Although art. I, § 11, of the Indiana Constitution appears to have been
derived from the Fourth Amendment and shares the same language, we interpret and
apply art. I, § 11, independently from Fourth Amendment jurisprudence. State v.
Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002); Mitchell v. State, 745 N.E.2d 775,
786 (Ind. 2001); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999); Brown
v. State, 653 N.E.2d 77, 78 (Ind. 1995); Moran v. State, 644 N.E.2d
536, 540 (Ind. 1994). Rather than looking to federal requirements such as
warrants and probable cause when evaluating Section 11 claims, we place the burden
on the State to show that under the totality of the circumstances its
intrusion was reasonable. Baldwin, 715 N.E.2d at 337, (citing Brown, 653 N.E.2d
A determination of whether there was reasonable suspicion in this case does not
turn on the reliability of the informants tip. Cf. State v. Glass,
769 N.E.2d 639 (Ind. Ct. App. 2002) (anonymous tip did not provide reasonable
suspicion under Fourth Amendment for traffic stop), trans. denied 783 N.E.2d 695 (Ind.
2002). It is uncontested that the police department had a previous relationship
with the Meijers loss prevention personnel, and that members of that department contacted
the police and provided sufficient detail of the conduct engaged in by defendant
and his companion. The question that this case poses is whether the
content of the information contained in that tip was enough to provide Officer
McCoy with reasonable suspicion.
We have applied this general principle of reasonable suspicion in three major cases
that have some bearing on the question presented here.
In Mitchell v. State, we were asked to consider whether pretextual traffic stops
police stops for a minor traffic violations as a pretext to investigate
drivers or vehicles for other reasons were reasonable within the meaning of
art. I, § 11. We held such stops constitutional for two reasons:
We find nothing unreasonable in permitting an officer, who may have knowledge or suspicion of unrelated criminal activity by the motorist, to nevertheless respond to an observed traffic violation. It is likewise not unreasonable for a motorist who commits a traffic law violation to be subject to accountability for said violation even if the officer may have an ulterior motive of furthering an unrelated criminal investigation.
745 N.E.2d at 787.
In Baldwin v. Reagan, we were asked to consider whether traffic stops to
determine whether seat belts were fastened were reasonable within the meaning of art.
I, § 11. We held that a police officer could not stop
a motorist in Indiana for a possible seat belt violation unless that officer
reasonably suspect[ed] that the driver or a passenger in the vehicle [was] not
wearing a seat belt as required by law. This reasonable suspicion exists where
the officer observes the driver or passenger under circumstances (e.g., bodily movement, distance,
angle, lighting, weather) that would cause an ordinary prudent person to believe that
the driver or passenger is not wearing a seat belt as required by
law. 715 N.E.2d at 337.
In State v. Gerschoffer, we were asked to consider whether traffic stops at
sobriety checkpoints were reasonable within the meaning of art. I, § 11.
While acknowledging the absence of the individualized suspicion of which we spoke in
Baldwin, we identified as the principal value embodied in art. I, § 11,
protection of Hoosiers from unreasonable police activity in private areas of their lives.
Gerschoffer, 763 N.E.2d at 965 (citing Brown, 653 N.E.2d at 79).
Drawing from some work by Professor Amar, we concluded that that value was
promoted by reducing official arbitrariness, discretion, and discrimination. Gerschoffer, 763 N.E.2d
at 966 (quoting Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L.
Rev. 757, 809 (1994)). We then looked to the public safety benefits
of sobriety checkpoints in reducing alcohol-related automobile accidents and found they could be
achieved consistent with art. I, § 11, with minimally intrusive roadblock[s] designed and
implemented on neutral criteria that safely and effectively target[ ] a serious danger
specific to vehicular operation. Gerschoffer, 763 N.E.2d at 966.
Mitchell, Baldwin, and Gerschoffer together, our art. I, § 11, jurisprudence does
not limit the authority of law enforcement in circumstances where an ordinarily prudent
person would believe a violation of law has occurred or is occurring.
But where there is no reason to believe a violation of law has
occurred or is occurring, a traffic stop is reasonable only if designed and
implemented on neutral criteria that safely and effectively targets a serious danger specific
to vehicular operation.
Defendants case is not on all fours with any of these precedents.
On the one hand, the police had absolutely no reason to believe defendant
had violated or was violating any law when he was stopped. While
it is a crime to possess two or more chemical reagents or precursors
with the intent to manufacture methamphetamine, Ind. Code § 35-48-4-14.5(c), the evidence is
not disputed that the defendant and his companion only purchased one such reagent
or precursor at Meijer, ephedrine. And the trial court specifically found that
defendant had not committed any traffic violation.
On the other hand, defendant was not stopped at random. There was
at least some reason to believe that, to use a phrase borrowed from
federal jurisprudence, criminal activity might be afoot defendant and his companion had
together purchased a quantity of one reagent or precursor.
Was this enough to establish reasonable suspicion for purposes of art. I, §
11? We hold that it was not.
If the principal value of art. I, § 11, is to protect Hoosiers
from unreasonable police activity in private areas of their lives, Brown, 653 N.E.2d
at 79, then the standards for its application must, in Professor Amars words,
reduce[ ] the opportunities for official arbitrariness, discretion, and discrimination. Amar, 107 Harv.
L. Rev. at 809. The opportunities for official arbitrariness, discretion, and discrimination
are simply too great if we were to find that the purchase by
two companions of three packages each of cold medicine
See footnote justifies a search or
seizure under art. I, § 11. Such a holding, at least in
an Indiana winter, would permit so many searches and seizures as to license
itrariness, discretion, and discrimination in their execution. And the problem is
compounded when the nature of other reagents and precursors are considered substances
such as rubbing alcohol, iodine, duct tape, lithium batteries, and antifreeze.
Just as we were forced in Gerschoffer to confront tension between multiple constitutional
objectives in respect of alcohol-related traffic accidents, this case brings us face to
face with the serious dangers of methamphetamines. Indeed, a major publication has
recently written about the methamphetamine menace in Indiana and other Midwestern states and
the danger it poses to the lives of children who suffer from the
drug from the noxious fumes its manufacturers produce, from the risk of
fire and explosions, and from abuse or neglect by adults on a long,
cheap high. You take the high road, The Economist, Nov. 29, 2003
A brief review of cases from other jurisdictions indicate that had additional indicia
that criminal activity was afoot been available to the police here, the traffic
stop at issue might well have been valid.
In State of Iowa v. Heuser, 661 N.W.2d 157 (Iowa 2003), a Target
store employee notified police that two people had purchased numerous packages of over-the-counter
cold medication containing pseudoephedrine hydrochloride. The couple entered the store together but
separated and bought the medicine at different cash registers. The employee gave
the police a description of the man and woman, the van they were
driving, and the license plate number. The police found the van at
Wal-Mart where they saw the woman go into Wal-Mart and come out with
her purchases. The couple then drove to Walgreens. The man went
into the store. The police contacted the store and asked what the
man bought. The employee saw the man purchase several boxes of cold
medication containing pseudoephedrine hydrocholoride and ask about lithium batteries. At each stop,
the man and woman traded places driving the van, so as to alternate
the person purchasing the medication. The police stopped the van a short
time latter. The Iowa Supreme Court found that the officers had reasonable
cause under the Fourth Amendment to stop the van. Id. at 162.
We likely would have reached the same result under art. I, §
11. As the Iowa court said:
This is not a case where a person possessed only a large amount of cold medication or only a number of lithium batteries. Rather, Heuser possessed an unusually large number of pills. In addition to the pills, the officers had reasonable cause to suspect Heuser also possessed lithium batteries. These facts coupled with Heusers suspicious conduct driving from store to store gathering medication and switching-off with his companion to buy the pills formed a solid basis upon which the officers had reasonable cause to stop the van to determine whether criminal activity [was] afoot.
Id. at 161 (emphasis included in original opinion).
Heuser is representative of the recent cases concerning this subject. Courts have found reasonable suspicion under the Fourth Amendment when the customer (1) purchases a combination of methamphetamine precursors from one store; See footnote (2) purchases a combination of pr ecursors from several stores; See footnote (3) purchases of one precursor and then commits a traffic violation warranting a traffic stop;See footnote and (4) purchases one precursor and the arresting officer has knowledge of defendants previous involvement with metha mphetamine. See footnote
Heuser, we think it likely that we would find reasonable suspicion to
exist in each of these circumstances. But none of these cases involved
an officer conducting an investigatory stop of a person based solely on information
that the person legally purchased a small to moderate amount of one precursor.
Rather, in Heuser and each of the cases cited in footnotes 4,
5, 6, and 7, the respective courts relied on at least one other
additional specific and articulable circumstance that, when combined with the purchase of one
precursor, produced evidence sufficient to create an inference that the defendants intention in
engaging in the combination of activities was to posses chemical reagents or precursors
for the manufacturing of methamphetamine.
Dickson and Rucker, JJ., concur.
Boehm, J., dissents with separate opinion in which Shepard, C.J., joins.
Boehm, J., dissenting.
As the majority notes, we review these reasonable suspicion determinations de novo. Under that standard, I have no trouble finding that the information supplied by the Meijer store employees provided the officers with grounds for reasonable suspicion that a crime was afoot. The police were told that two men lingered in front of the cold remedy section of the store where one finds products containing ephedrine, a widely known ingredient of methamphetamine. Each selected the maximum number of packages that the store is to sell to one customer without notifying law enforcement. The two then separated and checked out individually. They are then observed emptying the pills into bags of loose pills. Of common human activities of which I am aware, I can think of nothing these actions suggest except preparation to cook these pills into some broth. It seems to me that the police had a moral certainty, not just reasonable suspicion, that they had some unregulated pharmaceutical manufacturers on their hands. I would reverse and remand for trial.
Shepard, C.J., joins.