State v. Caban

GARTZKE, P.J.

(concurring). I reluctantly add a third opinion to this appeal. I agree with the dissent that Caban waived the probable cause issue because he did not raise it at the trial court level, but the lead opinion properly reviews the issue in view of the trial court's decision.

Because the trial court sua sponte addressed it, we may address the probable cause issue without fear of criticism. The trial court said,

So in light of all the facts and circumstances, the court will find that there was a valid arrest of Mr. Caban, that the search of his vehicle, even though not directly on the premises where the drugs were found, was in the immediate vicinity. The police knew he came in the vehicle. He had a large amount of cash that would indicate possible drug dealing. That all of this gave, in conjunction with the arrest, the police officers probable cause to search the motor vehicle for evidence of crime. . ..

Thus; the trial court believed the facts were sufficiently developed to decide whether probable cause existed, and it decided the issue, even though appellant did not raise it and even though the court therefore could have affirmed the conviction without deciding the issue.

I disregard the dissenting opinion's musings regarding "feints" and the risk of an incomplete record. No "feint" occurred, and the trial court deemed the record sufficiently complete for it to raise and decide the probable cause issue. It is therefore appropriate for us to review that decision.

I agree with the lead opinion that the police lacked probable cause to search the automobile.