Search of man’s mouth ruled unconstitutional

by Marilyn Odendahl for www.theindianalawyer.com

The Indiana Court of Appeals has overturned a man’s conviction, ruling the drugs found in his mouth should be excluded under the “fruit of the poisonous tree doctrine.”

Will Thomas appealed his conviction for dealing in a narcotic drug as a Class A felony on the grounds that police lacked the probable cause to arrest, detain, move and search him after a traffic stop in Grant County.

Thomas was the passenger in a van pulled over by local law enforcement. A search of the van by a drug-sniffing dog indicated the presence of narcotics but officers did not find any controlled substances after they conducted a pat-down search of Thomas and the driver.

The driver then consented to a strip search but Thomas declined. He was taken to the Marion Police Department and while waiting in the interview room, was observed taking something from his pocket and putting it into his mouth.

Police forced his mouth open and found a small plastic baggie with 8.5 grams of heroin.

Before the Court of Appeals, Thomas argued the heroin should not have been admitted as evidence at trial because the police did not have probable cause to detain him or take him to the police station. The officers did not find narcotics in the vehicle so the decision to arrest and transport him for a strip search was unreasonable.

However, the state countered Thomas’s Fourth Amendment rights were not violated. The dog sniff gave the police probable cause to search the vehicle as well as detain and take Thomas to the station.

Noting there is no Indiana precedent for these circumstances, the Court of Appeals relied on decisions from Ohio, Virginia and North Carolina. There the court found probable cause is particularized to the premises, vehicle or person to be searched.

Although the traffic stop and search of the vehicle were constitutional, the dog sniff did not provide any information about Thomas or the driver. The court held that the police engaged in a process of elimination by reasoning the drugs must be on either the driver or Thomas since nothing was found in the vehicle.

“Here, there was no contraband in the vehicle, and under circumstances like these the probable cause arising from a drug dog’s alert to a larger area like a car does not permit a fishing expedition into the pockets of each of the car’s occupants,” Judge L. Mark Bailey wrote in Will Thomas v. State of Indiana, 27A02-1602-CR-374.

Finding the police had no probable cause to detain Thomas, the Court of Appeals held his detention and transportation was unconstitutional. “The drugs obtained from him after he had been transported were thus ‘fruit of the poisonous tree,’ and should have been excluded from evidence at trial,” Bailey wrote.