BOYLE V. COM.
CRIMINAL: SEARCH AND SEIZURE – INVESTIGATORY TRAFFIC STOP
2006-CA-000761
PUBLISHED: AFFIRMING
PANEL: LAMBERT PRESIDING; MOORE CONCURS; NICKELL DISSENTS WITH SEP. OPINION
COUNTY: HARDIN
DATE RENDERED: 10/26/2007
In 2-1 decision, CA affirmed TC’s order denying Boyle’s motion to suppress in DUI prosecution based upon an illegal stop.
The uncontroverted, material facts surrounding the investigatory stop in this case are that Boyle drove his unmarked pick-up truck after midnight with a single orange, road-construction barrel in its bed. Because CA knew “as a matter of ordinary human experience” that the increasingly ubiquitous orange, road-construction barrel is ordinarily transported during daylight hours, in bunches, and by marked construction or government vehicles, CA found that, at the time of the investigatory stop leading to Boyle’s arrest and guilty plea, there was indeed a reasonable and articulable suspicion that Boyle was in possession of a stolen barrel. Thus, even though the barrel was later shown to have been borrowed, not stolen, the arresting officer’s investigatory stop was not unconstitutional or improper.
Note: This decision is truly a head-scratcher. Judge Nickell’s dissent accurately points out that the basis of the stop was a general assumption that sometimes construction barrels are stolen. More surprising is the fact this case is designated "To Be Published". The 4th Amendment has been dealt a serious blow with this poorly reasoned opinion.
Digested by Scott C. Byrd
Olgin and Byrd
