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Court Concludes Office Went Too Far

Court Concludes Office Went Too Far

Passenger Search Improper

During a traffic stop, the defendant, a passenger, admitted to the officer that he had marijuana. The defendant consented to a pat search, but the officer more thoroughly searched the defendant’s pockets. The Court finds that in spite of justification to conduct a pat frisk, that the search into the defendant’s pockets was not lawful. [Editor’s note: the Court of Appeals here did not consider whether the search could be justified under a search incident to arrest or exigent circumstances theory because the State did not argue any other theory other than consent. The result in this case is quite odd because it would appear that a person stating that they have marijuana would justify a search of the person’s pockets to look for marijuana without obtaining a warrant. As long as probable cause for arrest exists prior to the search, a search can be incident to arrest even though it precedes the arrest.] State v. Barnett (Ct. App. Unpubl., 09/10/18).

————— Nov 16, 2018