search of shoes invalid where officer testified that he asked defendant to remove his shoes not as part of a search for weapons, but as part of search for evidence
How later courts described this case
- search of shoes invalid where officer testified that he asked defendant to remove his shoes not as part of a search for weapons, but as part of search for evidence
- search of shoes impermissible absent sufficient articulable facts indicating that reasonably prudent person would believe defendant to be armed and dangerous
Written by the judges who cited it.
Distinguished
Distinguished by State v. Napper, Unpublished Decision (7-13-2001) (2001)
Mitchell, however, is distinguishable in that inMitchell, the driver of the stopped vehicle told the officer that there was some cocaine under the front seat of his vehicle.
The opinion
Harsha, Presiding Judge,
dissenting.
Given the specific and narrow facts of this case, I dissent. The Fourth Amendment protects against unreasonable searches and seizures. Given the
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existence of probable cause, including the driver’s admission concerning the existence and location of the drugs and appellant’s access to them, the destructible nature of the evidence involved, and the greater degree of intrusion involved in detaining the appellant until a warrant could be obtained, the rationale set forth in
Cupp v. Murphy
(1973), 412 U.S. 291 , 93 S.Ct. 2000 , 36 L.Ed.2d 900 , as followed in
State v. Wamsley
(May 8, 1989), Madison App. No. CA88-11-026, unreported, 1989 WL 47883 , convinces me that the search was reasonable within the meaning of the Fourth Amendment. I am quick to acknowledge, however, that neither proximity nor probable cause standing alone or together is normally sufficient to overcome the warrant requirement for searches of the person.