{"id":4419,"date":"2010-12-29T08:49:25","date_gmt":"2010-07-11T09:30:09","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-07-11T09:30:09","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4419","title":{"rendered":"IN: Ordered out of a car at gun point and made to lie on the ground was a seizure"},"content":{"rendered":"

Being ordered out of the car at gun point was a seizure. \u201cAgain, Reinhart gave no indication that he was armed or dangerous. Nevertheless, with the laser sight of Deputy Coney\u2019s gun prominently fixed on him, Reinhart was ordered first to kneel with his hands behind his head for a period and then lie face down on the ground for an additional period of time while waiting for the second police officer to arrive. Reinhart was then handcuffed before he was searched twice. We believe that a reasonable person in Reinhart’s position would not have believed himself to be free to leave but instead would have considered his freedom of movement to have been restrained to the degree associated with a formal arrest. … [\u00b6] While we are mindful of the significant danger faced by police officers during traffic stops, we must balance the interests of officer safety with the privacy interests protected by the Fourth Amendment in requiring law enforcement to use the least intrusive means necessary to investigate a traffic stop.\u201d Reinhart v. State<\/a>, 2010 Ind. App. LEXIS 1207 (July 9, 2010).* (The only thing that makes no sense here is the state\u2019s argument that this was not a seizure.).<\/p>\n

An individual in a house made statements that supported the need for a protective sweep (\u201c[I]t wasn\u2019t us with the gun, it wasn\u2019t us with the gun.\u201d), and it was valid under Buie<\/a>. Taylor v. State<\/a>, 929 N.E.2d 913 (Ind. App. 2010).*<\/p>\n

On rehearing from Bush v. State<\/a>, 925 N.E.2d 787 (Ind. App. 2010) (not precedental), the state was found to have changed its original theory, not the defendant. The state waived Gant. Bush v. State<\/a>, 929 N.E.2d 897 (Ind. App. 2010)*:<\/p>\n

In its petition for rehearing, the State correctly points out that this court cannot reverse on issues raised sua sponte unless the grounds for reversal constitute fundamental error. …. However, given the parties’ arguments as discussed above, we do not regard the reasonableness of Bush’s detention and the canine sniff of his automobile as an issue raised sua sponte. The State, by not responding in its brief to Bush’s contentions regarding Gant<\/a> and instead focusing its Fourth Amendment argument on the canine sniff as the basis for the warrantless search, impliedly consented to litigating this case on the grounds addressed in our original opinion. It is too late for the State to switch course and insist the warrantless search issue is properly framed only in terms of whether the search was valid under Gant<\/a>.1 ….<\/p>\n

1 The State’s petition for rehearing does not argue the search of Bush’s automobile was valid under Gant<\/a>.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-4419","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4419","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4419"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4419\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4419"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4419"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4419"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}