State v. Bulington

Attorneys for Appellant Attorney for Appellee

Steve Carter E. Kent Moore
Attorney General of Indiana Lafayette, IN

Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, IN
________________________________________________________________________
In the
Indiana Supreme Court
_________________________________

No. 79S04-0310-CR-436

State of Indiana,
Appellant (Plaintiff below),

v.

Robert Bulington
Appellee (Defendant below).
_________________________________

Appeal from the Tippecanoe County Superior Court,
No. 79D01-0201-FB-2
The Honorable Donald C. Johnson, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No.79A04-0206-CR-
261 _________________________________

January 29, 2004

Sullivan, Justice.

The police asked a Meijer Superstore to report every customer who
bought three or more packages of cold medicine. Acting on such a report,
the police stopped and searched defendant Robert Bulington's truck and
discovered various other substances used to produce methamphetamine. He
was charged with the crime of “Possession of Precursors of
Methamphetamine.” We affirm the trial judge's decision that there was
insufficient evidence to create the reasonable suspicion necessary to
justify stopping defendant's truck.

Background

The Lafayette Police Department drug task force asked Daniel Majors, a
loss prevention team member at Meijer Superstore in Lafayette, to call
every time Meijer loss prevention team members saw a customer select three
or more boxes of cold medicine, antihistamines, or Robitussin. The police
department also instructed Majors to call when a customer purchased lithium
batteries, a can of fuel, duct tape, or any other precursors for the
manufacture of methamphetamine. Meijer’s employees were instructed to
contact the police even if the customer only purchased one roll of duct
tape or one can of fuel. Loss prevention team members instructed Cassie
Oakley, a Meijer team leader, to watch for people looking at nasal
decongestants because the medication can be used in manufacturing illegal
drugs.

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 defendant’s 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
officer’s 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 court’s 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 defendant’s 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).

Discussion

The State contends that the trial court erroneously granted
defendant’s motion to suppress the evidence the police found in defendant’s
truck. The State argues that the officers had reasonable suspicion to
believe that criminal activity was afoot when they stopped defendant
because Meijer store employees observed defendant and his companion with
six boxes of ephedrine, a precursor for methamphetamine. Defendant
responds that the officers conducted an investigatory stop without
reasonable suspicion in violation of the Fourth Amendment of the United
States Constitution and art. I, § 11, of the Indiana Constitution.

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 Court’s 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 review here,[1] it may be that the
Fourth Amendment’s mandate of reasonable suspicion 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 at 79-80).

A determination of whether there was reasonable suspicion in this case
does not turn on the reliability of the informant’s 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 Meijer’s 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.[2]

Reading 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.

Defendant’s 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
Amar’s 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[3] 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 official arbitrariness,
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 (U.S. Edition).

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 Heuser’s
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;[4] (2) purchases a combination of precursors from several stores;[5]
(3) purchases of one precursor and then commits a traffic violation
warranting a traffic stop;[6] and (4) purchases one precursor and the
arresting officer has knowledge of defendant’s previous involvement with
methamphetamine.[7]

Like 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 defendant’s intention in engaging in the combination
of activities was to posses chemical reagents or precursors for the
manufacturing of methamphetamine.

Conclusion

Having previously granted transfer pursuant to Ind. App. R. 58(A), we
now affirm the judgment of the trial court.

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.

-----------------------
[1] Ornelas says that de novo appellate review of reasonable suspicion
determinations must “give due weight to inferences drawn from [the] facts
by resident judges ….” Ornelas, 517 U.S. at 699. Justice Scalia has
argued that such deference is incompatible with de novo review. Arvizu,
122 S.Ct. at 754 (Scalia, J., concurring) (citing Ornelas, 517 U.S. at 705
(Scalia, J., dissenting)).
[2] Importantly, we did find in Gerschoffer that, while roadblocks do not
per se violate art. I, § 11, the roadblock at issue in that case was
unconstitutional.
[3] Retail stores often offer, “buy one-get one free” coupons with a one-
per-customer limitation. A customer can circumvent that limitation and
double his or her purchasing power by shopping with a companion, each of
whom uses the “buy one-get one free coupon,” checks out separately, and
then meets outside to settle up.
[4] State v. Odom, 2003 Ala. Crim. App. LEXIS 160, *6 (Al. Ct. App. June
27, 2003) (officer noticed the individuals go through the checkout line
“several” times to purchase 2 bottles of propane fuel, a set of stainless
steel cookware, 4 packages of lithium batteries, 3 boxes of Equate brand
cold and allergy medication, 4 boxes of Sudafed cold and allergy
medication, and 12 bottles of antifreeze). See State v. Maddox, 670 N.W.2d
168, 173-174 (Iowa 2003) (finding probable cause where officers knew that
the defendant had purchased a six-pack of starter fluid, flexible plastic
tubing, coffee filters and a plastic or glass jar in one of their carts,
items which the manager recognized in combination might be used to produce
methamphetamine).

[5] United States v. Ameling, 328 F.3d 443, 448 (8th Cir. 2003) (officers
knew that a Target security officer with special training on
methamphetamine manufacturing observed the defendants enter the store
together, split up and go through separate registers to purchase a
significant amount of pseudoephedrine; defendants reunited at a truck
outside the store; defendants immediately traveled to a nearby store to
make further purchases; and an employee at that store informed the officers
that the defendant’s purchased a lithium battery) cert. denied 2003 U.S.
LEXIS 7648 (2003).

[6] State v. Vereb, 643 N.W.2d 342, 347 (Minn. Ct. App. 2002) (officer
received a report from a store employee who observed two men purchasing a
large number of cold tablets; the chief knew that cold tablets were
precursor materials use in the production of methamphetamine; the employee
indicated to the officer that the men had recently left the store in a
vehicle; the employee accompanied the officer in a search for the vehicle;
the drivers of the vehicle attempted to evade his pursuit by traveling at
excessive speeds).

[7] United States v. Townsend, 330 F.3d 438, 441 (6th Cir. 2003) (officer
knew that defendant purchased a large quantity of ingredients known to be
used in the manufacture of methamphetamine; the color, model, and tag
number of defendant’s vehicle, as well as the direction in which it was
traveling; that the car had recently been involved in a chase relating to
the theft of anhydrous ammonia; and that defendant had been involved in an
explosion at an alleged methamphetamine lab).