arrest of defendant and search of his vehicle not supported by probable cause where police officer with little experience or training in the area of drug enforcement mistakenly identified a block of wood inside defendant's car as the controlled substance peyote
How later courts described this case
- arrest of defendant and search of his vehicle not supported by probable cause where police officer with little experience or training in the area of drug enforcement mistakenly identified a block of wood inside defendant's car as the controlled substance peyote
- "If subjective good faith alone were the test [for probable cause] the protection of the Fourth Amendment would evaporate and the people would be `secure in their persons, houses, papers and effects,' only in the discretion of the police."
Written by the judges who cited it.
The opinion
*49 SPAETH, Judge,
concurring.
I agree with most of what is said in Judge LIPEZ’s opinion, and therefore join in the order granting a new trial. I wish, however, to note one reservation.
The opinion “assume[s] arguendo that there was no arrest for possession of a controlled substance.” Majority opinion at 1046. I am uneasy with this assumption, for I find it unnecessary. The facts show that there was such an arrest. I agree with Judge LIPEZ that the arrest was unlawful because it was not based on probable cause. Therefore, the search incident to the arrest was also unlawful, and the fruits of that search must be suppressed.
As I see it, the difference between Gustafson and Robinson, on the one hand, and this case, on the other, is that in Gustafson and Robinson the arrest was lawful.