Salter v. State ( 1990 )

Deen, Presiding Judge,

dissenting.

I dissent for some of the reasons stated in Division 2 of the dissent written by Judge Birdsong. I believe that under the “totality of the circumstances” test in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), the police had probable cause to support warrantless searches of the appellant’s person and the car. After the search of appellant’s person produced nothing, there still existed an independent probable cause to search the car. The police could have searched the car at the scene, but instead elected to take the car to the police station to search it under more favorable conditions, where they found the cocaine. Regardless of whether it was lawful to arrest appellant at the scene before the cocaine was found, I see no circumstances to indicate that the arrest tainted the subsequent search, or had any effect on the probable cause that continued to exist for the search of the car. The characterization of the search as an inventory taken pursuant to the arrest is not controlling. I agree that for constitutional purposes there was no difference between conducting the search of the car pursuant to probable cause at the scene or at the police station, although arguably the police could have sought a warrant for the search of the car once the decision was made to search it at the station. See Chambers v. Maroney, 399 U. S. 42 (90 SC 1975, 26 LE2d 419) (1970).

The seizure of the contraband, which provided support for appellant’s arrest and conviction, was lawful. For these reasons and those stated in Division 3 of Judge Birdsong’s dissent, I would affirm the conviction.