Opinion
No. 79A04-0206-CR-261
October 22, 2002
APPEAL FROM THE TIPPECANOE SUPERIOR COURT, The Honorable Donald C. Johnson, Judge, Cause No. 79D02-0201-FB-2.
STEVE CARTER, Attorney General of Indiana, MONIKA PREKOPA TALBOT, Deputy Attorney General, Indianapolis, Indiana, ATTORNEYS FOR APPELLANT.
E. KENT MOORE, Lafayette, Indiana, ATTORNEY FOR APPELLEE.
OPINION FOR PUBLICATION
STATEMENT OF THE CASE
The State of Indiana appeals the trial court's order granting the motion by Robert Bulington to suppress evidence.
We affirm.
ISSUE
Whether the trial court erred in granting the motion to suppress.
FACTS
The Lafayette Police Department Drug Task Force had asked the loss prevention team at the Meijer store to contact it whenever a customer bought certain items: three or more packages of certain types of cold medicine, or multiple lithium batteries, fuel or duct tape rolls. They were told these were "precursors for the manufacture of methamphetamines." (Tr. 11). About 10:00 p.m. on December 11, 2001, a clerk informed the loss prevention team that two men were "looking at cold medicine." (Tr. 13). Team member Daniel Majors observed the men on a closed circuit camera as each selected "three boxes of antihistamines" and paid for the medicine at separate cash registers. (Tr. 15). As the men departed the store, Majors called the Police Department dispatcher and advised that two men had each bought "three boxes of cold medicine." (Tr. 17). Majors stayed on the line with the dispatcher, watching through a camera as both men entered a single truck in the parking lot.
Officer Scott McCoy responded to the dispatch, drove to the Meijer store, and located the specific truck that had been occupied by the men since they had exited the store about five minutes earlier. McCoy followed the truck from the Meijer parking lot, as he awaited the arrival of a second officer. The truck turned into Denny's and pulled into a parking space. McCoy pulled behind the truck, blocking it in, and activated his red and blue lights, and when the second officer arrived, McCoy approached the driver of the truck, Bulington, and asked him to exit the vehicle. After Bulington exited the truck, McCoy asked him for his license and registration, which he handed to the officer. McCoy retained the documents and did not return them to Bulington. A third officer arrived. McCoy asked Bulington for his permission to conduct a patdown search; Bulington agreed, and no weapon was found. McCoy then asked Bulington for permission to search his vehicle. McCoy testified that Bulington told him he "could search his vehicle." (Tr. 52).
Based upon the evidence found in Bulington's truck, the State charged him with conspiracy to commit dealing in methamphetamine, "illegal drug lab," maintaining a common nuisance, and reckless possession of paraphernalia. Bulington filed a motion to suppress the items found in his truck. (App. 10).
Possession of two or more chemicals or precursors with the intent to manufacture methamphetamine, see Ind. Code § 35-48-2-6.
At the hearing on the motion to suppress, McCoy testified that he was dispatched on a report of two men who "had purchased the maximum amount of ephedrine." (Tr. 32). Asked what was meant by "the maximum amount," McCoy answered, "three boxes per person," but then testified that he was not aware of any law limiting to three the number of ephedrine packages a person could legally purchase. (Tr. 46). When asked why he had stopped Bulington, he testified that it was the Meijer store report about the men having "purchased the maximum amount" and "that they were acting in a suspicious manner." (Tr. 32). However, McCoy provided no testimony about any reported suspicious activity, and he did not testify that he had witnessed any suspicious activity by Bulington and his passenger. Furthermore, Majors did not testify to having reported any suspicious act by Bulington other than the three-package purchase. McCoy also conceded at the hearing that there had been no traffic violation and that he had no basis for a traffic stop. McCoy further testified that he had not advised Bulington of his Miranda rights before asking permission to search the truck.
Majors testified that he reported to the dispatcher that the men had bought "cold medicine." (Tr. 17). McCoy testified to being informed about the purchase of "ephedrine." (Tr. 32). The parties appear to agree that the "cold medicine" which the men bought was of the "ephedrine" variety.
The trial court rendered a fourteen-page opinion wherein it granted Bulington's motion to suppress. It noted that the law forbids the possession of two or more chemical reagents or precursors with the intent to manufacture methamphetamines, but Bulington was alleged to have bought only one of those at the Meijer store, to wit: ephedrine. The trial court concluded that the evidence did not establish that Officer McCoy had the requisite reasonable suspicion to execute an investigative stop and that the State had failed to bear its burden of establishing that Bulington's consent to search the vehicle was made voluntarily.
Specifically, the trial court found that "the investigatory stop was based solely upon a tip made by a cooperative citizen based upon a profile (purchase of three boxes of cold medicine)." (App. 60).
DECISION
At a hearing on a motion to suppress evidence that is asserted to have been illegally obtained, the State has the burden of demonstrating the constitutionality of the measures it used to secure evidence. See State v. Glass, 769 N.E.2d 639, 641 (Ind.Ct.App. 2002), trans. denied. When the State appeals from the granting of such a motion, it again bears the burden of demonstrating the constitutionality of its search. State v. Dodson, 733 N.E.2d 968, 970 (Ind.Ct.App. 2000). Further, because it is an appeal of a negative ruling, we will reverse only when the evidence is without conflict and all the reasonable inferences from the evidence lead to a conclusion opposite that which was reached by the trial court. Id. We consider the evidence most favorable to the ruling and any uncontradicted evidence to the contrary as we determine whether there is sufficient evidence to support the ruling. Id. at 371. And we do not reweigh the evidence or assess witness credibility. Id.
The Fourth Amendment to the United States Constitution protects us from unreasonable search or seizure by governmental agents. U.S. Const. Amend. IV. Generally, a seizure must be conducted pursuant to a properly issued warrant. See Pavey v. State, 764 N.E.2d 692 701 (Ind.Ct.App. 2000), trans. denied. However, a police officer may briefly detain a person for investigatory purposes without a warrant "if, based upon specific and articulable facts together with rational inferences from those facts, the official intrusion is reasonably warranted and the officer has a reasonable suspicion that criminal activity `may be afoot.'" Glass, 769 N.E.2d at 641-42 (quoting Terry v. Ohio, 392 U.S. 1 (1968)).
The State argues that the stop was permissible because Officer McCoy had reasonable suspicion of criminal activity based upon the report by Majors that the two men had each bought three packages of ephedrine. The State specifically argues that it was the "large quantity" of the methamphetamine precursor ephedrine which was purchased that created the reasonable suspicion. State's Br. at 6. However, beyond the fact that there were three packages of ephedrine, there is no evidence as to the quantity. We do not know what size packages these were, e.g., containing twelve pills or forty-eight pills each, and there was no testimony as to the recommended dosage of these pills. If, hypothetically, the packages contained twelve pills each, to be taken every four hours, and each man had a family with several individuals sick, the purchase of three packages apiece would not amount to criminally suspicious behavior. The evidence before us does not lead us to a result opposite the trial court's conclusion that the articulated facts known to McCoy did not warrant official intrusion on Bulington's "right to personal security free from arbitrary interference by law enforcement." (App. 60). See Glass, 769 N.E.2d at 641.
The record does not support the dissent's opinion that "we can reasonably infer that he [McCoy] was aware of" the facts that Majors testified to having conveyed to the dispatcher. (Dissent slip op. at 4) Reasonable suspicion should be based upon what the officer knew before conducting an investigatory stop, not what he learned or was informed thereafter.
Under Article 1, Section 11, of the Indiana Constitution, an investigatory stop is permissible if the officer reasonably suspects that the individual "is engaged in, or about to engage in, illegal activity."Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001). "Reasonable suspicion exists if the facts known to the officer, together with the reasonable inferences arising therefrom, would cause an ordinarily prudent person to believe that criminal activity" has occurred or is about to occur. Id. 786-87. The State again argues that the stop was reasonable based on the information that the two men "were in possession of a large quantity of ephedrine, a precursor for methamphetamine." State's Br. at 6. For the same reasons that we found the evidence articulated by McCoy for having stopped Bulington to be insufficient to justify a stop permissible under the Fourth Amendment to the U.S. Constitution, we also find the evidence does not justify the stop under Article 1, Section 11, of the Indiana Constitution.
Finally, the State contends that McCoy could rely on the information provided by Majors, which established the requisite suspicion to execute an investigatory stop, citing State v. Eichholtz, 752 N.E.2d 163 (Ind.Ct.App. 2001). In Eichholtz, a citizen gave the license plate number and description of a vehicle which he reported to the 911 operator as crossing into the opposite lane of traffic and driving onto curbs. We held that because the citizen identified himself to the 911 operator such that he could have been held legally responsible for having filed a false police report, the information so provided was sufficient to justify an investigatory stop by police. In Eichholtz, the actions reported to the police, if true, constituted illegal conduct. If the actions had been observed by an officer, the officer could have executed an investigatory stop. However, here, what was reported to the police was not illegal conduct. As McCoy testified, no law proscribes the purchase of three packages of ephedrine; even if McCoy had observed Bulington make the purchase, he would not have had sufficient grounds for an investigatory stop based solely thereon.
The State assumes that the information provided by Majors was received by McCoy. The dissent cites Majors' testimony as to what he told the dispatcher about the actions of the two men "messing around in the truck pulling out other bags of stuff and messing around with the boxes." (Tr. 17, 18). However, McCoy did not testify that dispatch so informed him, and we further fail to comprehend the suspicious nature of such activity surely it did not suggest that the men were engaged in the manufacture of methamphetamines there in the car. McCoy testified that through dispatch, he heard information conveyed by "a representative of Meijers" indicating the location of the two men. (Tr. 31). McCoy testified that the information, via the communication with the dispatcher, that led him to make the stop was "that they had purchased the maximum amount of ephedrine, packs of ephedrine, there were two individuals who had purchased the maximum amount and that they were acting in a suspicious manner and, you know, reasonable suspicion, you know, that a crime might be about to take place so I stopped them." (Tr. 32). Terry requires the officer to have had "specific articulable facts" that support the officer's "reasonable suspicion that criminal activity `may be afoot.'" See Glass, 669 N.E.2d at 641-42 (quoting Terry v. Ohio, 392 U.S. 1 (1968)). McCoy did not articulate any such specific facts, merely that the men were "acting in a suspicious manner" and observed in a specific vehicle, which he stopped. Further, as our standard of review provides, we do not assess the credibility of the witnesses who testified before the trial court. See Dodson, 733 N.E.2d at 970.
Finally, the State contends that the search of Bulington's truck was legal "because Bulington freely and voluntarily consented to the search" after having been stopped by McCoy for "a brief investigation based on reasonable suspicion." State's Br. at 8. However, we have already found that McCoy's stop of Bulington was illegal because it was not based on reasonable suspicion. Because Bulington was subject to an illegal seizure, the evidence derivatively gained as a result of that seizure must be excluded as the "fruit" of that illegal seizure, or "fruit of the poisonous tree." See Hanna v. State, 726 N.E.2d 384, 389 (Ind.Ct.App. 2000).
We affirm.
KIRSCH, J., concurs.
BROOK, C.J., dissents with separate opinion.
In his appellate brief, Bulington states that he "went to a store and made a legitimate purchase of three packages of cold medicine. The fact that a companion of Mr. Bulington made a similar purchase raises no inference that the purpose of the purchase is to manufacture methamphetamine." Appellant's Br. at 16. I must respectfully disagree with Bulington's assertion on this point, and therefore I must respectfully disagree with the majority's conclusion that Officer McCoy did not have reasonable suspicion to conduct an investigatory stop.
At the suppression hearing, Officer McCoy testified in relevant part as follows:
On the way to Meijers our dispatch was in contact with somebody from Meijers, a representative of Meijers the entire time we were there and they were giving kind of giving us the low down or the play by play so to speak of the two gentlemen who had bought it, where they were out, now they're sitting in the vehicle, the type of vehicle, the color of the vehicle, and that sort of thing until my arrival [at the Meijer store]. And then when I arrived they indicated that they were still in the vehicle, the vehicle was leaving the parking lot, I saw a vehicle matching the description that they'd previously given, I pulled in behind this truck at that time through our dispatch Meijers indicated that I was in fact behind the truck that they suspected.
I had information from Meijers that they had purchased the maximum amount of ephedrine, packs of ephedrine, there were two individuals who had purchased the maximum amount and that they were acting in a suspicious manner and, you know, reasonable suspicion, you know that a crime might be about to take place so I stopped them.
Tr. at 31, 32. Additionally, Officer McCoy acknowledged that he had received "special training in the area of the manufacture and production of methamphetamine," id. at 29, specifically with respect to the "precursors necessary to make methamphetamine," a primary one of which is ephedrine. Id. at 30.
On cross-examination, defense counsel referred to Officer McCoy's report of the incident, which apparently indicated that Bulington and his companion purchased the "maximum amount" of Sudafed. See Tr. at 45 ("[Y]ou've indicated that there is that two in your report two males purchased the maximum amount of Sudafed[.]"). None of the witnesses at the suppression hearing testified as to the specific medication that Bulington and his companion purchased at Meijer, and only Officer McCoy testified that the medication contained ephedrine. Assuming, arguendo, that the medication at issue was in fact Sudafed, the record does not establish whether its active ingredient is ephedrine or pseudoephedrine. In any event, both substances are among the "chemical reagents or precursors" listed in Indiana Code Section 35-48-4-14.5.
"The reasonable suspicion requirement is met where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur." State v. Glass, 769 N.E.2d 639, 642 (Ind.Ct.App. 2002), trans. denied. In evaluating the validity of a stop based on reasonable suspicion, "we must consider `the totality of the circumstances the whole picture.'" United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). As Chief Justice Burger explained in Cortez,
An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like "articulable suspicion" and "founded suspicion" are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances the whole picture must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.
The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions inferences and deductions that might well elude an untrained person.
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry v. Ohio, supra, said that, "[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence."
449 U.S. at 417-418 (footnote and citations omitted).
As was the case with two men repeatedly strolling past and staring in a store window in Terry, here Officer McCoy was made aware of "a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation." Terry, 392 U.S. at 22. At the suppression hearing, Majors testified that he informed the police dispatcher that Bulington and his companion each purchased three boxes of medication in separate checkout lanes, exited the store separately, entered the same truck in the parking lot, "mess[ed] around in the truck pulling out other bags of stuff[,]" Tr. at 17, and "remove[ed] the boxes [sic] of the tablets from the boxes and put them into the Meijer bags." Id. at 18. In light of Officer McCoy's excerpted testimony, we can reasonably infer that he was aware of these facts when he initiated the investigatory stop. Officer McCoy was also aware that the medication at issue contained a precursor of methamphetamine. Based on the totality of these circumstances, it was reasonable for Officer McCoy to suspect that Bulington and his companion were aware of (or at least suspected the existence of) the store's policy of alerting authorities to the purchase of certain quantities of methamphetamine precursors and that they had attempted to purchase one such precursor in a manner calculated to avoid suspicion and with the intent to manufacture methamphetamine.
Given that Officer McCoy knew that the police dispatcher was receiving information about Bulington from an eyewitness Meijer employee and determined that he "was in fact behind the truck that they suspected[,]" Tr. at 31, I conclude that he reasonably relied on Majors's information in establishing reasonable suspicion to conduct an investigatory stop. See Johnson v. State, 766 N.E.2d 426, 430 (Ind.Ct.App. 2002) (noting that cooperative citizen informants such as eyewitnesses "are considered to be reliable for the purpose of determining probable cause unless incriminating circumstances exist which cast suspicion upon the informants' reliability"), trans. denied.
This is not the first time that our court has encountered such a policy. See Dolkey v. State, 750 N.E.2d 460, 461 n. 2 (Ind.Ct.App. 2001) ("According to [a Vanderburgh County Wal-Mart store's loss prevention associate], the store's loss prevention department notifies authorities as a standard operating procedure when a customer purchases three boxes of pseudoephedrine tablets or other `maximum amount[s] of specific precursor[s]' of methamphetamine."). Evidently, such policies have existed for several years. See Indiana State Board of Pharmacy, Pharmacy Board Newsletter: OTC Diversion (June 1999) ("All pharmacists should be aware that OTC drug products can be used to make drugs such as methamphetamine. One of the most common products is pseudoephedrine, a nasal decongestant found in many cold, flu and allergy medications. Some retailers have implemented voluntary sales limits."), http://www.state.in.us/hpb/boards/isbp/newsletters/june99.html. In offering guidance to pharmacists and retailers "on how to detect suspicious transactions[,]" the Drug Enforcement Administration Suspicious Order Task Force developed a list of factors "geared for the retail level[,]" including "OTC customers who ask for more than the sales limit" and "[g]roups of customers who each buy the sales limit[.]" Id. Given the apparent prevalence of "voluntary sales limits" for medications containing ephedrine or pseudoephedrine, and the reasonable inference that methamphetamine manufacturers are aware of such limits and attempt to avoid suspicion when purchasing precursors, I do not find persuasive the majority's reliance on the lack of testimony regarding the quantity of pills in each box in concluding that "the purchase of three packages apiece would not amount to criminally suspicious behavior." Slip op. at 6.
I acknowledge that possession of only one of the chemical reagents or precursors listed in Indiana Code Section 35-48-4-14.5 is not a crime. See Ind. Code § 35-48-4-14.5(c) (requiring possession of two or more chemical reagents or precursors with intent to manufacture methamphetamine for commission of Class D felony). Under the circumstances, however, I believe that Officer McCoy could have reasonably suspected that Bulington and his companion were in the process of purchasing multiple precursors in a manner calculated to avoid detection and with the intent to manufacture methamphetamine and that Officer McCoy was therefore justified in conducting an investigatory stop.
We are not concerned here with the purchase of the "maximum amount" of Sudafed by a single customer who simply enters and exits the store alone. Although such a purchase might well have prompted Majors to alert the authorities, without more (in my view), it would not give rise to a reasonable suspicion of criminal activity sufficient to justify an investigatory stop. Nothing would prohibit an officer, however, from conducting a less intrusive investigation to determine whether the Sudafed purchaser might subsequently purchase additional precursors at other stores with the intent to manufacture methamphetamine. The fact remains that in the instant case, Officer McCoy knew that Bulington and his companion purchased the "maximum amount" of a methamphetamine precursor at separate registers, left the store separately, entered the same truck, "pull[ed] out other bags of stuff[,]" removed the tablet packages from the boxes, and deposited the packages in their shopping bags. Each of these acts appears innocuous when viewed in isolation, but when viewed in their totality, they constitute an objective manifestation that Bulington and his companion were, or were about to be, engaged in criminal activity. See Cortez, 449 U.S. at 417; see also, e.g., Luster v. State, 578 N.E.2d 740, 743 (Ind.Ct.App. 1991) ("A series of acts taken together, each of them perhaps innocent if viewed separately, could warrant investigation.") (citing Terry). As such, I must conclude that Officer McCoy's investigatory stop of Bulington was both permissible under the Fourth Amendment of the United States Constitution and reasonable under Article I, Section 11 of the Indiana Constitution. See Francis v. State, 764 N.E.2d 641, 646-47 (Ind.Ct.App. 2002) (noting that appropriate analysis for legality of investigatory stops under Indiana Constitution is "`whether the police behavior was reasonable'") (citation omitted).
Having reached this conclusion, however, I must admit that I am deeply troubled by the prospect of unwritten store "policies" specifying a seemingly arbitrary "maximum amount" of certain household items and combinations of items that customers may purchase without coming under suspicion or being asked to explain a particular purchase. I am similarly troubled by the prospect of authorities relying on tips from store employees, some of whom might be overly zealous or improperly trained, in investigating the spreading scourge of methamphetamine production. Nevertheless, I cannot ignore the fact that unlike illegal drugs derived from cocaine or opium, methamphetamine can be easily manufactured using raw materials and equipment that (with the exception of anhydrous ammonia) are readily available in any drugstore or general retail store. As a consequence, thousands of purchases of otherwise "innocent" household items in certain quantities and combinations that once would have been made without notice or comment now result in heightened surveillance and criminal investigation. Faced with this disturbingly Orwellian reality, both the courts and the civil authorities must ensure that Indiana's laws against methamphetamine manufacture are enforced in a manner that does not unreasonably infringe upon the privacy rights of Hoosiers guaranteed by the state and federal constitutions.
At the suppression hearing, Majors testified that
the drug task force stated that they would like us to give the Lafayette Police Department a call every time we see subjects select like three boxes or more of cold medicine, antihistamines, Robitussin, they also stated they'd like us to call them when we see them select lithium batteries, fuel, any of the precursors for the manufacture of methamphetamines, they want us to give them a call. They also stated if like a subject selected like two boxes or maybe just a couple of things of duct tape and fuel, just to our camera system at the store can take their picture and just to take their picture and document it and then leave a message on their answering machine and then they usually came in and saw what the subject looked like and stuff like that.
Tr. at 11-12. Majors further testified that he had told the store clerk in the instant case "that if she saw anybody select boxes, three boxes or more of antihistamines or even two boxes and that's all they selected to give somebody from loss prevention a call because we needed to contact the police department about it." Id. at 14. Majors stated that he was told to call the authorities "even if somebody purchases two boxes of methamphetamines [sic] and then two packages of lithium batteries because that's two precursors in the use of making methamphetamines." Id. at 21. Finally, Majors acknowledged that he would call the authorities if a customer purchased only one tank of propane fuel or duct tape. See id. at 21-22.
See Indiana State Board of Pharmacy, Pharmacy Board Newsletter (June 1999) (listing as a factor in detecting "suspicious transactions" an "[i]odine customer who [doesn't] have a legitimate reason for the purchase or an articulable reason for the volume requested" and "[c]ustomers who buy only the largest size available"), http://www.state.in.us/hpb/boards/isbp/ newsletters/june99.html.
See National Drug Intelligence Center, Indiana Drug Threat Assessment (April 2001) ("Methamphetamine production is increasing, especially in rural areas. The Indiana State Police Clandestine Laboratory Entry Team seized 128 methamphetamine laboratories in 1999 and 427 laboratories in 2000."), http://www.usdoj.gov/ndic/pubs/660/meth.htm; see also Seth Slabaugh, Secret meth labs pop up in East Central Indiana, The StarPress.com (Muncie, Indiana) (July 15, 2001) (noting that methamphetamine laboratories "have been found in more than 70 of Indiana's 92 counties"), http://www.thestarpress.com/ tsp/macros/series/stories/0715sermethlabday1.php.
See Seth Slabaugh, Meth labs a threat to police, firefighters, EMTs, TheStarPress.Com (Muncie, Indiana) (July 16, 2001) (noting that the only product used by methamphetamine manufacturers "that isn't available in stores is liquid anhydrous ammonia, an agricultural fertilizer."), http://thestarpress.com/tsp/ macros/series/stories/ 0716sermethlabs2.php; see also Seth Slabaugh, Secret meth labs pop up in East Central Indiana, The StarPress.com (Muncie, Indiana) (July 15, 2001) (noting that a methamphetamine laboratory in a barn in Jay County "included numerous boxes of matches (the strike plates contain phosphorous) and over-the-counter cold and allergy tablets, which contain ephedrine, a decongestant that easily can be converted into methamphetamine using household chemicals and anhydrous ammonia stolen from farmers"), http://www. thestarpress.com/tsp/macros/series/stories/0715sermethlabday1.php; National Drug Intelligence Center, Indiana Drug Threat Assessment (April 2001) ("An associated problem, occurring mostly in rural areas, is the increased theft of anhydrous ammonia — a key ingredient in the Nazi method of methamphetamine production — from farm cooperatives throughout the state, especially in Vigo County."), http://www.usdoj.gov/ ndic/pubs/660/meth.htm.
See United States Drug Enforcement Administration, Methamphetamine Factsheet ("Methamphetamine is a powerful stimulant. It is a controlled substance that is manufactured in clandestine laboratories throughout the United States. It is easy to make using common household chemicals. No formal chemistry training is needed."), http://www.usdoj.gov/dea/pubs/pressrel/methfact01.html.
As desirable as it might be to offer law enforcement officials some guidance as to the parameters of reasonable suspicion in methamphetamine cases such as this, we must remember that a reasonable-suspicion inquiry is necessarily "fact-sensitive and must be determined on a case-by-case basis." Francis, 764 N.E.2d at 644.
If Officer McCoy was justified in conducting an investigatory stop, the question then becomes whether Bulington voluntarily consented to the search of his truck:
Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure. In cases involving a warrantless search, the State bears the burden of proving an exception to the warrant requirement. A valid consent to search is an exception to the warrant requirement. The theory underlying this exception is that, when an individual gives the State permission to search either his person or property, the governmental intrusion is presumably reasonable.
When the State seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent was, in fact, freely and voluntarily given. The voluntariness of this consent to search is a question of fact to be determined from the totality of the circumstances. A consent to search is valid except where it is procured by fraud, duress, fear, intimidation, or where it is merely a submission to the supremacy of the law. To constitute a valid waiver of Fourth Amendment rights, a consent must be the intelligent relinquishment of a known right or privilege. Such a waiver cannot be conclusively presumed from a verbal expression of assent unless the court determines, from the totality of the circumstances, that the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld. Knowledge of the right to refuse a search is one factor which indicates voluntariness.
The "totality of the circumstances" from which the voluntariness of a detainee's consent is to be determined includes, but is not limited to, the following considerations: (1) whether the defendant was advised of his Miranda rights prior to the request to search; (2) the defendant's degree of education and intelligence; (3) whether the defendant was advised of his right not to consent; (4) whether the detainee has had previous encounters with law enforcement; (5) whether the officer made any express or implied claims of authority to search without consent; (6) whether the officer was engaged in any illegal action prior to the request; (7) whether the defendant was cooperative previously; and (8) whether the officer was deceptive as to his true identity or the purpose of the search.
Lyons v. State, 735 N.E.2d 1179, 1184-85 (Ind.Ct.App. 2000) (citations omitted), trans. denied (2002).
In the instant case, the evidence is undisputed that three police officers and three police vehicles were present at the scene of the stop; that Officer McCoy had informed Bulington of the reason for the stop and had performed a consensual patdown search of his person; and that the officers asked for and retained Bulington's driver's license and registration. When Officer McCoy asked Bulington whether he "mind[ed] if [he] look[ed] through [his] vehicle," Tr. at 52, Bulington shook his head "yes". Id. at 36. When Officer McCoy sought to clarify the meaning of this response, Bulington "said yes that [the officers] could search his vehicle." Id. The totality of these circumstances indicates that Bulington's consent was not procured by fraud, duress, fear, or intimidation and was not merely a submission to the supremacy of the law; that Bulington need not have been advised of his Miranda rights because he was not subjected to custodial interrogation; that none of the officers made any express or implied claims of authority to search without consent; that Officer McCoy had not engaged in any illegal action prior to the request; that there was no indication that Bulington had been uncooperative; and that Officer McCoy was not deceptive as to his true identity or the purpose of the search. See Lyons, 735 N.E.2d at 1185. The record is silent with respect to the remaining considerations mentioned in Lyons but clearly supports the conclusion that Bulington's consent to the search of his truck was freely and voluntarily given.
Because Officer McCoy's detention of Bulington was an investigatory stop, rather than a consensual encounter, Bulington's reliance on Finger v. State, 769 N.E.2d 207 (Ind.Ct.App. 2002), petition for trans. filed, (Sept. 27, 2002), is misplaced with respect to the officers' retention of his driver's license and registration.
See Green v. State, 753 N.E.2d 52, 58 (Ind.Ct.App. 2001) (noting that "police officers are not required to give Miranda warnings unless the defendant is `both in custody and subject to interrogation'") (citation omitted), trans. denied.
Indeed, Officer McCoy acknowledged that he would have had no authority to search Bulington's truck without his consent. See Tr. at 53.
For these reasons, I would reverse the trial court's grant of Bulington's motion to suppress.