Indiana finds a traffic stop pretextual and invalidates it under the state constitution (albeit reading exactly like the Fourth Amendment), including a videotaped confession occurring shortly thereafter. Turner v. State, 862 N.E.2d 695 (2007):
Pretextual stops are not, per se, unreasonable under the Indiana Constitution. However, this admittedly pretextual stop facilitated by a traffic violation of questionable validity was not reasonable in the light of the circumstances and violated Turner’s rights under Article I, Section 11 of the Indiana Constitution.
Because the traffic stop was illegal under the Indiana Constitution, we must determine what evidence, if any, should be suppressed.
“[N]ot all evidence is the fruit of the poisonous tree because it is the result of an illegal search or seizure. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitations of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Evidence may be purged of the primary taint if the causal connection between the illegal police conduct and the procurement of the evidence is so attenuated as to dissipate the taint of the illegal action.”
Quinn v. State, 792 N.E.2d 597, 600 (Ind. Ct. App. 2003) (internal citations omitted), trans. denied 804 N.E.2d 753 (Ind. 2003). Three factors for consideration in determining whether the causal chain is sufficiently attenuated are: “(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.” Id. (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). 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.'” Id. (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)).
Maryland holds that refusal to submit to a search warrant for blood samples that defendant knew were in relation to a death was admissible as consciousness of guilt. [This is different from exercise of the right to refuse consent where no warrant is involved.] Thomas v. State, 397 Md. 557, 919 A.2d 49 (2007):
Despite Detective Knowlan’s expanded testimony, petitioner argues that the trial court should still have found the consciousness of guilt evidence inadmissible. His argument rests primarily on the first inference we noted in Thomas I: “from his resistance to the blood test, a desire to conceal evidence.” Petitioner claims that numerous other factors could have explained his reluctance to submit to the testing. He states that his reaction “would be the universal response” of anyone taken to a police interrogation room and told they would be required to provide a blood sample. Further, he posits that his reaction could have been due to religious objections or fear of needles, the sight of blood, pain, or possible infection. We find these arguments unconvincing.
We agree with the explication of the Court of Special Appeals, which stated as follows:
“Federal courts have also held that resistance to police requests for evidence could support an inference of consciousness of guilt. See United States v. Jackson, 886 F.2d 838, 846 (7th Cir. 1989) (stating that ‘evidence of the defendant’s refusal to furnish writing exemplars, like evidence of flight and concealment, is probative of consciousness of guilt’); United States v. Terry, 702 F.2d 299, 313-14 (2d Cir. 1983) (holding that evidence that defendants refused to permit investigators to obtain palm prints was admissible to show consciousness of guilt). Appellant courts in sister states have held that evidence of the refusal to provide a blood sample is admissible to support an inference of consciousness of guilt. [People v. Farnam, 28 Cal. 4th 107, 47 P.3d 988, 1022 (Cal. 2002)] (stating that evidence that the defendant initially resisted providing blood and hair samples, despite a court order that he do so, was admissible to show consciousness of guilt); [People v. Edwards, 241 Ill. App. 3d 839, 609 N.E.2d 962, 966, 182 Ill. Dec. 428 (Ill. App. Ct. 1993)] (stating that ‘Defendant’s initial refusal to submit to blood testing has some tendency to indicate a consciousness of guilt and is therefore relevant and generally admissible’).”
Thomas, 168 Md. App. at 710, 899 A.2d at 186-87. So long as the proper foundation is laid, consciousness of guilt evidence may be relevant and admissible.
Simply because there is a possibility that there exists some innocent, or alternate, explanation for the conduct does not mean that the proffered evidence is per se inadmissible. If it was the position of petitioner that he feared needles, or that the drawing of blood violated some religious belief he held, or any other innocent explanation for his conduct, it was incumbent upon him to generate that issue. He had the opportunity at trial to offer alternative theories explaining his resistance to the blood test, and the record is completely devoid of any such evidence. See 2 JAMES H. CHADBOURN, WIGMORE ON EVIDENCE § 276(e), p. 130 (Chadbourn rev. 1979) (stating that “the accused may always endeavor to destroy the adverse significance of his conduct by facts which indicate it to be equally or more consistent with such other hypothesis than that of a consciousness of guilt”). The State is not required to anticipate any or all conceivable innocent explanations for a party’s refusal to submit to a blood test, and its failure to do so is not a basis to exclude the evidence. See id. at § 276(b), p. 129 (stating that the “prosecution cannot be expected to negative beforehand all conceivable innocent explanations [for consciousness of guilt]”).
Off-duty police officer working security at a bar was not acting as a governmental actor when he patted down the defendant for weapons on entering the bar. Also, the patrons were warned of the coming patdown. People v. Nadal, 48 V.I. 212, 2007 V.I. LEXIS 6 (V.I. Super. Ct. February 5, 2007).*
Search was suppressed because it was for “a dwelling” that was “white with a green roof” but three were searched and none had a green roof. People v. Trotman, 48 V.I. 156, 2006 V.I. LEXIS 31 (V.I. Super. Ct. December 14, 2006).*
