People v. Damaska

¶1(dissenting). Leave to appeal should be denied.

¶2The memorandum opinion states as "pertinent fact” (5), supporting the conclusion that the officers had "probable cause to proceed as they did”,1 that "the name taped on the calculator differed from the defendant’s”. The name taped on the calculator was not determined until after the officer had searched the automobile and calculator by *395examining it. Therefore, the name taped on the calculator is not a pertinent fact, and cannot be considered in determining whether there was probable cause to search the automobile or the calculator.

¶3Before the search of the automobile and calculator, the police did not have probable cause to believe that a crime had been committed and that the calculator was evidence of such crime. They may have been suspicious, they may even had reason to continue the investigation, but they could not do so by entering the automobile and searching it or the calculator by examining it without probable cause to believe that a crime had been committed and there was evidence of that crime there to be found.

¶4The United States Supreme Court has authorized investigatory stops on less than probable cause. It has authorized protective searches for weapons as an incident of an investigatory stop. It has never authorized an investigatory search as part of an investigatory stop. Thus, although the police in the instant case may have had reason to continue their investigation, they were without authority to conduct an investigatory search simply because no officer at any time under any circumstances is authorized to do so.

¶5The limits of police authority during an investigatory stop have been carefully circumscribed by the United States Supreme Court. In Sibron v New York, 392 US 40, 65-66; 88 S Ct 1889; 20 L Ed 2d 917 (1968), decided the same day as the seminal case of Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), the Court held that, absent probable cause for an arrest or search, evidence obtained as a result of a search for articles other than weapons must be suppressed:

*396"Even assuming arguendo that there were adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by Patrolman Martin were so clearly unrelated to that justification as to render the heroin inadmissible. The search for weapons approved in Terryconsisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terryplace his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into Sibron’s pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man. Such a search violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents.” (Emphasis changed.)

¶6The search here was not a protective search of Damaska’s person for weapons. The police entered his automobile to look for evidence of crime and, thus, what they found is within the Sibronproscription.

¶7In Adams v Williams, 407 US 143, 146; 92 S Ct 1921; 32 L Ed 2d 612 (1972), the Court said of protective searches as part of an investigatory stop:

"The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to *397believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. ” (Emphasis supplied.)

¶8The search here was not "limited in scope to [the] protective purpose”. It was an investigatory search and, therefore, probable cause to believe that a crime had been committed and evidence of that crime would be found was required before the search.

¶9In United States v Brignoni-Ponce, 422 US 873, 881-882; 95 S Ct 2574; 45 L Ed 2d 607 (1975), where the Court dealt with investigatory stops by border patrol officers, the Court reaffirmed that investigatory detention or search must be based on probable cause, absent consent:

"The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.” (Emphasis supplied.)

¶10In the companion case of United States v Ortiz, 422 US 891, 896; 95 S Ct 2585; 45 L Ed 2d 623 (1975), the Court said:

"A search, even of an automobile, is a substantial invasion of privacy. To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search. ” (Emphasis supplied.)

¶11The police did not, before the search, have probable cause to believe that the calculator partially concealed by a coat on the back seat had been stolen. Before the officers entered the automobile they had determined that the vehicle was not stolen. Although Damaska did not have a driver’s *398license on his person, it was determined that a valid operator’s license had been issued to him. Damaska had not been arrested before the police entered the vehicle.

¶12Assuming that the police, either because of the hour or Damaska’s nervousness, had reason to be suspicious, that would not, even coupled with observation of a partially concealed calculator, provide a reasonable basis for concluding that Damaska had stolen the calculator and, therefore, they did not have a basis for concluding that the calculator was evidence of a crime that had been committed.2

¶13To state it differently, unless the police had probable cause to arrest Damaska and charge him with theft of the calculator or possession of a stolen calculator before they entered and searched the automobile and calculator by examining it, they perforce did not have probable cause to conduct such a search. That is because unless the police had probable cause to believe that a crime had been committed — theft of the calculator — they did not have reason to search for evidence of that crime.

¶14*399The police did not, before the search, have probable cause to believe that Damaska had stolen the calculator or to arrest him for that crime. They did not have probable cause to search the automobile for evidence of crime because they did not have probable cause to believe that a crime had been committed.

¶15I would deny leave to appeal.