Daygee v. State

FITZGERALD, Justice

(concurring).

I agree that the warrantless search of the motor vehicle at the place it was stopped on the highway by the police was valid. My reasoning is reached somewhat differently from that of the plurality. They uphold the search as one incidental to a lawful arrest. I have some difficulty with this view in light of the restrictions placed on such searches by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

At the time the officer made his search, he had probable cause to believe the vehicle contained marijuana. Under these circumstances, the police were authorized either to make a search of the vehicle or to impound it until a search warrant might be obtained.¹

1 . Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).