State v. Robinson

OPINION CONCURRING IN RESULT

SEILER, Presiding Judge.

Although I originally cast a dissenting vote in this case, I have concluded to withdraw my dissent and concur in the result. I do this because I can see why the officer would have probable cause to make a search of the driver’s person for weapons or contraband when the driver had sought to resist being stopped by trying to outrun the police and lead them on a high speed chase. I assume this case will not be read as authorizing a search of the driver’s person on a mere routine traffic arrest without more, and if State v. Moody (Mo.Sup.) 443 S.W.2d 802 , stands for such a proposition, I would disagree with it. Few drivers, men or women, can drive any considerable distance without violating some traffic law or ordinance. It seems to me that a search of the driver after a traffic violation arrest would be justified only when there are such unusual circumstances present as to give rise to probable cause on the part of the arresting officer to believe before he makes the search for the search will be fruitful, Dyke v. Taylor Implement Manufacturing Co., Inc., 391 U.S. 216 , 88 S.Ct. 1472 , 20 L.Ed.2d 538 . When we get into the matter of traffic violations we are talking about something which may happen to almost any reputable citizen. Extending carte blanche authorization for a search of the person in all such cases is pretty strong medicine. As pointed out in Terry v. Ohio, 392 U.S. 1, 16-17 , 88 S.Ct. 1868, 1877 , 20 L.Ed.2d 889 , which involved only a pat down type of search and not a going inside the pockets, even the former involves “ * * * a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised * * *. It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”