finding that the search was beyond the scope of Terry where there was no evidence that officers feared for their safety before asking defendant to remove his shoes
How later courts described this case
- finding that the search was beyond the scope of Terry where there was no evidence that officers feared for their safety before asking defendant to remove his shoes
- wherein a defendant attempted to dispose of evidence when illegally seized by police and the court ruled that such disposal did not constitute an independent, intervening act sufficient to justify a subsequent arrest because the disposal was a direct and immediate response to illegal police conduct
- finding "close temporal proximity between the illegal arrest and the defendant's response"
- first-time informant said defendant seen with heroin for sale at bar; corroboration that defendant was there was insufficient to establish probable cause to arrest
Written by the judges who cited it.
The opinion
Nolan, J.
(dissenting). I dissent. If ever a fact pattern came within the boundaries of Terry v. Ohio, 392 U.S. 1 (1968), it is this case. If ever police officers had the right (if not the obligation) to stop and frisk a person, it was here, armed as they were with specific information as to name, place, and particulars of the location of the drugs (“left pants pocket”). One police officer, the judge found, had known Borges for many years. In Terry, supra at 5-6 , it should be recalled, the detective was not acquainted with either man suspected of *799 planning a robbery and the detective had received no information about them. The Court in Terry acknowledged the “seizure” of the men whose suspicious conduct the detective had observed and insisted that the test was one of reasonableness. Terry v. Ohio, supra at 19, 30-31 . For some reason which the opinion has failed to disclose, the court today decides that it was unreasonable for the officers to require the defendant to remove his shoes to prevent his escape. Would it have been “more reasonable” to keep a gun pointed at his head to prevent his escape?
This is but another example of the extent to which the exclusionary rule has led to a travesty of good order and common sense.