Indiana Law Annotated Vol. 19 No. 5 September 22, 2000

Table of Contents


The 2000-2001 Moot Court Lecture Series presents a discussion of fatal errors in brief writing and oral advocacy. Matthew "Big Brother" Gutwein along with 1999-2000 Moot Court champion Phil Gutwein (3L) will present "MC Survivor: How you can survive the Moot Court Competition" on Tuesday, Sept. 26 at 7:00 p.m. You DON'T want to miss this lecture.

Matthew Gutwein graduated summa cum laude from IU School of Law in 1988 and from the IU School of Education in 1985. He is a Partner with Baker & Daniels in Indianapolis and an Adjunct Professor at IU School of Law in constitutional litigation and civil rights. He practices in the areas of regulatory, administrative and commercial litigation. Matt also presents lectures on Federal Constitutional law, State Constitutional Law and Administrative Law for the Lawyers Bar Review.

Prior to joining Baker & Daniels, Matt served as the Counsel to Governor Evan Bayh. Matt was responsible for advising the Governor regarding the legal affairs of the State of Indiana. Matt has also served as Chairman of the Indiana Transportation Finance Authority and was a member of the Indiana Code Revision Commission. Matt has served as Special Counsel for Legal Policy to the Indiana Attorney General. In that capacity, he was responsible for, among other things, the State of Indiana's litigation before the United States Supreme Court. He presented the oral argument before the United States Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994) and represented the State of Indiana before the Indiana Court of Appeals, Indiana Supreme Court and United States Supreme Court in Michael G. Tyson v. State. After law school, Matt was associated with the law firm of Onek, Klein & Farr, Washington, D.C., where he focused on appellate litigation.


The Indiana Court of Appeals will hear arguments in a case raising important issues under the Indiana Constitution on Monday, Oct. 2, at 12:05 p.m. in the Moot Court Room. All students and faculty are invited to attend. The appeal challenges the constitutionality of police sobriety checkpoints. The State will be represented at oral argument by Tim Beam, IU Law Class of '99. The appellant will be represented by Mark Kopinski of South Bend. The case is an appeal from St. Joseph County Superior Court. The panel of judges includes Judge Edward Najam, Judge Patrick Sullivan, and Judge Sandy Brook. A case summary follows; the briefs are on reserve at the Library.

Facts and Procedural History

On the evening of June 18, 1999, the Indiana State Police and the Mishawaka Police Department conducted a joint sobriety checkpoint on McKinley Avenue in Mishawaka. Indiana State Police Sergeant Gary Coffie and Mishawaka Police Corporal Timothy Williams had previously agreed to conduct the checkpoint and notified local news media two days earlier. The officers selected the site of the sobriety checkpoint because that location had been used before, it had been a "trouble spot" for the Mishawaka Police Department, and it was well-lighted and allowed police to pull cars off the road without impeding traffic.

At approximately 11:30 p.m., police set up the sobriety checkpoint according to the predetermined plans. Sergeant Coffie positioned his patrol car in the middle of McKinley Avenue with a sign indicating a sobriety checkpoint. Police placed cones and flares leading traffic from the roadway into an adjacent parking lot. Sergeant Coffie then began to flag down five cars at a time to tenter the checkpoint. Drivers entering the checkpoint were asked to produce their licenses and registrations. If an officer would ask the driver to perform field sobriety tests. If no violations were detected, the driver was free to go, and the stop lasted less than five minutes.

Gerschoffer was one of seventy cars that passed through the sobriety checkpoint. While speaking to Gerschoffer, Corporal Williams smelled a strong odor of alcohol, observed that Gerschoffer's eyes were glassy and bloodshot, and noticed that his speech was slurred. After failing three field sobriety tests, Gerschoffer agreed to submit to a chemical test, which revealed he had a blood alcohol content (BAC) of 0.11.

The State charged Gerschoffer with operating a vehicle while intoxicated (OWI) and with operating a vehicle with a BAC of at least a 0.10. Both offenses were elevated to Class D felonies because Gerschoffer had a previous conviction of OWI within the last five years. Gerschoffer filed a motion to suppress all evidence of his intoxication obtained at the sobriety checkpoint, claiming that the checkpoint violated the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Indiana Constitution. Following a suppression hearing, the trial court granted Gerschoffer's motion to suppress. It concluded that the sobriety checkpoint "did not violate the Fourth Amendment, as it followed, as it followed very closely the guidelines approved by the Indiana Supreme Court in Garcia v. State, [500 N.E.2d 158 (Ind. 1986), cert. denied, 481 U.S. 1014 (1986)]". However, the trial court determined that the checkpoint did not comport with the requirements of the Indiana constitution, noting that "where no exigent circumstances exist; and where the [S]tate could easily seek the issuance of a warrant from a neutral detached judicial officer, failure to do so is unreasonable." The State challenges that ruling on appeal.

Parties' Contentions

In Garcia, the Indiana Supreme Court held that a police sobriety checkpoint is valid under the Fourth Amendment as an enforcement method to combat drunk driving, so long as the checkpoint meets the guidelines set forth by the U.S. Supreme Court in Brown v. Texas, 443 U.S. 47 (1979) and other Fourth Amendment cases. The court in Brown enunciated three factors to be weighed in determining the reasonableness of seizures that are less intrusive than a traditional arrest, i.e., sobriety checkpoints:

1.The gravity of the public concerns served by the seizure;

2.The degree to which the seizure advances the public interest; and

3.The severity of the interference with individual liberty.

In addition, the sobriety check point must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers so that the officers do not have the unbridled discretion to decide which vehicles should be detained. Whether sobriety checkpoints are constitutional under Article I, Section 11 of the Indiana Constitution is an issue of first impression. Under the Indiana Constitution, the State must show that a search was reasonable in light of the totality of the circumstances.

The State contends that the trial court improperly suppressed evidence of Gerschoffer's intoxication obtained at the sobriety checkpoint. In particular, it argues that the trial court erred when it essentially concluded that a sobriety checkpoint was per se unreasonable under Article I, Section 11 of the Indiana Constitution absent a valid warrant. That State maintains that the reasonableness requirement under the Indiana Constitution is satisfied by the federal three-prong balancing test set forth in Brown and urges this court to adopt the guidelines set forth in cases interpreting the constitutionality of sobriety checkpoints under the Fourth Amendment.

Gerschoffer counters that the trial court did not err in suppressing the evidence of his intoxication. He urges that even if a warrant is not required to conduct a sobriety checkpoint, the Indiana Constitution provides greater protection than the United States Constitution and that sobriety checkpoints should be deemed unreasonable under Article I, Section 11.


The Academy of Law Alumni Fellows recognizes Indiana University School of Law Bloomington graduates who have earned renown and respect among their peers by virtue of dedication, talent, and allegiance to the highest standards of the legal profession. Honorees inducted into the Academy are selected by an anonymous committee of IU Law School graduates from nominations submitted by members of the school's alumni association.

The Indiana University School of Law inducted four of its distinguished graduates into its Academy of Law Alumni Fellows on Friday, Sept. 22, at its 24th Annual Alumni Weekend. The four honored alumni are Joseph B. Board, Jr., the Honorable William I. Garrard, William R. Riggs, and the Honorable Viola J. Taliaferro.

Professor Joseph Board received an A.B in Government with highest honors from Indiana University in 1953. He went on to earn a B.A. and a Masters degree in jurisprudence at Oxford as a Rhodes Scholar, a JD from the Indiana University School of Law Bloomington in 1958, and a Ph.D. in government from Indiana University in 1962.

Joseph Board's teaching career began in 1955, when he served as a teaching fellow at IU, then as a lecturer in government. He joined the faculty of Elmira College in 1959. Professor Board joined Cornell College in Mount Vernon, Iowa, as an associate professor in 1961. He attained the rank of full professor, as well as chairman of Cornell's political science department. In 1965, he joined the faculty of Union College in Schenectady, New York, as chairman and professor of the political science department. Since 1973, he has been the Robert Porter Patterson Professor of Government at Union College. He is also an adjunct professor of law at the Albany School of Law.

Joseph Board has been a visiting professor or a guest lecturer at many schools in the U.S. and Europe. In 1999 he returned to the Indiana University School of Law Bloomington to serve as a Scholar- In-Residence. Fluent in seven languages, Professor Board is the epitome of the international scholar. His regional area of expertise is Sweden, where he has studied Swedish culture and environment, as well as their government and politics. He is a recognized expert in the areas of foreign affairs, comparative and international law, international politics, comparative judicial studies, and American political and constitutional thought, and is the author of numerous books and articles on these topics.

Judge William Garrard attended Wabash College, receiving his A.B. in 1954. Following graduation, Judge Garrard served in the U.S. Army from 1954 to 1956. He then went on to Indiana University, where he received his J.D., with distinction, in 1959 and was elected to the Order of the Coif.

His law career began at the Warsaw, Indiana firm of Graham, Rasor, Eschbach & Harris. Garrard worked in general practice from until 1974, while concurrently serving as Deputy Prosecutor from 1959 to 1969. Then-Governor Otis Bowen appointed Garrard to the Indiana Court of Appeals in 1974. Judge Garrard was re-elected to his judicial post three times. He also served as presiding judge of the Third District for three terms. In 1990, Judge Garrard earned an LL.M. from the University of Virginia Law School. Judge Garrard served more than 25 years on the bench before retiring earlier this year. Hee continues to serve as Senior Judge of the Court of Appeals.

For 10 years, Judge Garrard served as an adjunct professor of law at the Indiana University School of Law Bloomington. He has also served as a faculty member at the National Institute of Trial Advocacy, and as a lecturer in trial and appellate practice seminars. He has presented at seminars for the Indiana State Bar Association, ICLEF, the National Highway Traffic Safety Administration and the Indiana Law Enforcement Academy.

Garrard has served as president of the Kosciusko County Bar Association; vice chairman and parliamentarian of the Indiana Supreme Court Rules Committee; and secretary of the Indiana State Bar Association. He has also served as president of the Warsaw Rotary Club; president of the Warsaw Chamber of Commerce; founding director of the Kosciusko Community YMCA; elder and president of the board of trustees of the First Presbyterian Church of Warsaw; and president of the Kosko Conservation Club. Judge Garrard is also a past president of the Indiana University School of Law Bloomington Law Alumni Association.

Garrard has received three Sagamore of the Wabash awards, given by Governors Bowen, Evan Bayh, and Frank O'Bannon; and a Presidential Citation from the Indiana State Bar Association.

William Riggs graduated cum laude from Harvard with an A.B. in 1956. Following graduation from Officer Candidate School in 1957, he received a commission as an ensign in the U.S. Navy. Mr. Riggs later enrolled in law school at IU, where he served as Editor-in-Chief of the Indiana Law Journal. When he received his J.D. in 1963, he graduated first in his class and Order of the Coif.

In 1963, Riggs joined the law firm of Ice Miller Donadio and Ryan. He has remained with this firm for over 37 years. Riggs' primary concentration is in the field of labor relations, negotiation and administration of collective bargaining agreements, arbitration of grievances arising out of the interpretation and application of collective bargaining agreements, and interpretation and application of various statutes that govern labor relations. His practice also extends to the public sector, where he has extensive experience in public sector collective bargaining. One of the things he has enjoyed most as a labor relations lawyer is representing Indiana University, which he has done since 1967.

Riggs has served on various policy committees for the firm, as well as serving as chairman of the firm's labor law section. He was a member of the firm's first elected executive committee and subsequently acted as the equivalent of the managing partner for many years.

Riggs currently serves on the board of directors of American United Life Insurance Company and State Life Insurance Company, and is a member of the Indiana University School of Law Bloomington Board of Visitors. He is a former member of the board of directors of Community Leaders Allied for Superior Schools and the board of trustees of Meridian Street United Methodist Church. In 1990, then- Governor Evan Bayh presented Riggs a Sagamore of the Wabash.

Judge Viola Taliaferro received her B.S. from Virginia State College in 1947. She then made her way to Morgan State College for an advanced studies degree. In 1969, she received her Master of Liberal Arts from Johns Hopkins University. Shortly thereafter, she came to Bloomington, where she received her law degree from Indiana University in 1977.

Taliaferro worked several years in the fields of social work and education. She began by working as supervisor of admissions at Tuskegee Institute in Alabama in 1947. Then she returned north, to work at Howard University's Medical School, while contemplating whether to attend medical school or law school. Taliaferro began teaching in the Baltimore Public Schools in 1965 and remained as both a teacher and department head until 1972 when she left for law school in Bloomington.

Following graduation from law school in 1977, Taliaferro went into private practice, in the areas of divorce, family, and criminal law. In 1989, Taliaferro was named Monroe Circuit Court magistrate. She was appointed Judge of Monroe Circuit Court VII in 1995 by then-Governor Evan Bayh, and continues to serve the community in this position today.

In addition to her judicial responsibilities, Judge Taliaferro also serves as a juvenile justice consultant to Attorney General Janet Reno and as a member of the National Research Council on Juvenile Crime: Prevention, Treatment and Control. In 1999, she was named a member of the prestigious American Law Institute.

Taliaferro serves on the board of directors of the Indiana Judges Association, the Indiana Judicial Center, the Indiana University Center for Human Growth, the Bloomington and Monroe County Community Foundation, and the Indiana Human Resources Council. She was Chair of the Bloomington Human Rights Commission, and served on the board of directors of the Indiana Bar Foundation, the Monroe County Youth Shelter, the Public Health Nursing Association, and the Community Service Council.


Professor John Applegate's new casebook, "The Regulation of Toxic Substances and Hazardous Wastes," was published by this week by Foundation Press.

Professor Kevin Brown will be delivering a lecture on Friday, Oct. 13 entitled "Equal Protection Challenges to the Use of Racial Classifications in the Admissions Process of Public Elementary and Secondary Schools" at a conference titled the "The End of School Desegregation?" held at the Byron White Center for the Study of American Constitutional Law located at the University of Colorado School of Law, in Boulder, Colorado.

Professor Aviva Orenstein led a discussion group about sexual harassment, gender politics, and ethics at the Indiana Women in Law conference last week. Alysa Rollock, formerly a professor at IU School of Law and now Vice President for Human Relations at Purdue, was a panelist on the program. The program included skits followed by the lively discussion, which included many practical suggestions for dealing with harassment and subtle discrimination in the workplace. Professor Orenstein also had the honor and immense pleasure of introducing the keynote speaker at the conference, Gloria Steinem.


Every year, law students are invited to participate in numerous national writing competitions, many with significant prizes. For instance, the Louis Jackson National Student Writing Competition in Employment and Labor Law, sponsored by the Chicago-Kent School of Law, offers a $3,000 first prize and two $1,000 awards, plus publication in that school's law review. Many IU Law students have won writing competitions in the past. Students are encouraged to check Dean Fromm's bulletin board for details about this and other writing competitions, and to seek faculty advice on participation. That seminar paper may be worth more than you think or you might tailor your seminar paper towards the topic of a writing competition.

SLA wishes to congratulate the three new members from the class of 2003: Paula Konfal, Chris Saporita, and Matt Silverman.

The deadline to submit your application for consideration by SLA and the Dean for appointment to one of our faculty committees has been extended until 5:00 p.m. on Tuesday, Sept. 26. Pick up an application from the board entering the library or from Room 024.

Students may purchase "E" stickers for parking in lots on the outskirts of campus and for parking in all lots in the evenings and week-ends. If you receive a parking ticket in one of the lots, you may be able to go to the

parking office and ask that the cost of the ticket count toward the purchase of a sticker.


Indiana State Bar applications for the February 27 and 28, 2001 testing are available in our office. The filing deadline is due on Nov. 15.

When we moved Intellectual Property to the 10:00 a.m. time slot, we neglected to change its exam time. Since there are students taking Intellectual Property and Environmental Law, we can't leave Intellectual Property in that exam slot. Accordingly, the Intellectual Property exam is moved to 9:00 a.m. on Wednesday, Dec. 13, which is the regular slot for 10:00 a.m. classes.


The Indiana State Bar Association will provide a pizza lunch for all students on Thursday, Sept. 28 at Noon in Room 120 to discuss the benefits of bar membership. Representatives from the Young Lawyers and Opportunities for Minorities Committee will be there to talk to students.


The Feminist Law Forum will be holding its second meeting Wednesday, Sept. 27, at 12:15 p.m. in Room 120. New members and those still interested in joining are welcome. This will be a planning meeting for upcoming events come share your ideas! Dues are $5 for the year, and should either be given to Emily Fitzgerald (3L) or placed in her mailbox.

We hope to see you there!

Please join the Women's Law Caucus in supporting the Jill Behrman Run for the End Zone. Jill, a 19-year-old sophomore at Indiana University, disappeared while riding her bike on the outskirts of Bloomington. Police believe she was abducted. The WLC is organizing a group of Runners/ Walkers to participate in the Jill Behrman Run for the End Zone, a 5K Walk/Run taking place on Saturday, Oct. 7. Check-in that day will be 8:30 - 9:45 a.m. The 5k Run/Walk will begin at 10:00 a.m.

All registration fees for the event will benefit the Jill Behrman Fund, a reward fund offered for information relating to the arrest and conviction of the person(s) responsible for her abduction. You can register for the event in the law school lobby Sept. 25-27, and Oct. 2 between 11:00 a.m. and 1:00 p.m. Please join us. Questions? Please contact Tricia Black (teblack).

The International Law Society's Kick-Off party is a notorious good time.

All ILS members, international students, and international minded

party-crashers are invited to join ILS and international faculty on the

back patio of Flora Ristorante this Thursday, Sept. 28, between 5:30

and 8:00 p.m. Wine, snacks and good conversation provided.

Flora Ristorante is located at 620 W. 5th Street, about a half mile west of the courthouse square on the right side of the street (as you head west). The building is covered with painted



BLSA and the Intellect are holding a Yoplait Yogurt top drive in order to support Breast Cancer research. If you, your friends, or your family eat Yoplait Yogurt, please keep the tops. We will have a drop box outside of the BLSA office on the ground level of the law school (across from the SLA

Bookstore). Please aid us in our efforts to support Breast Cancer by

bringing in your Yoplait Yogurt lids and dropping them in the collection box.

To schedule classrooms in the law building, send email to bl-law-events (for Outlook users) or bl-events-law@ (for non-Outlook users). Please include date and time of event, length of time room will be needed, classroom requested and number of people attending event. Requests should be sent at least one week prior to event and include name of person requesting, organization planning the event and an email address. Confirmations will be sent by reply email.

Requests for AV services may be sent to Beth at av@exchange. Please include the name of your group and the e-mail address of the contact person, a description of what you want to do, and the date, location, starting time and duration of the event. Requests must be made at least 48 hours in advance and will be confirmed.


Monday-Wednesday, Sept. 25-27, and Oct. 2, Register for Jill Behrman, Lobby, 11:00-1:00 p.m.

Tuesday, Sept. 26., Applications due for Faculty Committees, Room 024, 5:00 p.m.

Tuesday, Weekly, Christian Legal Society Bible Study, Room 214, 6:30 p.m.

Tuesday, Sept. 26, Matthew Gutwein, Moot Court Room, 7:00 p.m.

Wednesday, Sept. 27, Feminist Law Forum, Room 120, 12:15 p.m.

Thursday, Sept. 28, ISBA Presentation, Room 120, Noon.

Thursday, Sept. 28, ILS Kick-Off Party, Flora Ristorante, 5:30 - 8:00 p.m.

Monday, Oct. 2, Indiana Court of Appeals Oral Arguments, Moot Court Room, Noon.

Tuesday, Oct. 3, MPRE Application Deadline. (Oct. 19 with surcharge).

Wednesday, Oct. 4, PILF Wine and Cheese Party, Student Lounge, 4:15 p.m.

Saturday, Oct. 7, Jill Behrman Run for the End Zone. Register at 8:30 a.m. Event at 10:00 a.m.

Wednesday, Oct. 11, Professor Steve Johnson, Moot Court Room, 7:00 p.m.

Wednesday, Nov. 15, Indiana State Bar Applications due.

ILA: To be included on the email distribution list, please send your address to Paper copies are available upon request or in the student area of the law school. Information is also posted at The School of Law also appreciates the assistance TIS in the weekly reproduction of the newsletter.

Submissions: Information and articles for the ILA should be submitted by Thursday at 10 a.m. for inclusion in Monday's edition. Please email all submissions to

Letters to the Editor: Letters should be submitted Wednesday at 5 p.m. for possible inclusion in Monday's issue.

Updated: 22 September 2000