rendered on August 12, 2011 by the Court of Appeals - REVERSING AND REMANDING
To be published (CW petition for rehearing pending)
A 2-1 panel of the Court of Appeals ruled that the evidenced seized in a search of Mr. Turner’s car must be suppressed. Turner was stopped for turning without a proper signal while a block from his home. Turner had a license but it was not on his person. He refused to allow the police to consent because the vehicle was not his. The police told him they were calling a drug dog but none came. While Turner was in the truck, an officer saw him moving his arms between his legs and shrugging his shoulders. An open beer can was in the console covered by a hat police thought Turner had on while driving. Turner was given field sobriety tests but was not intoxicated. Turner was patted down, $232 was found, and Turner was arrested for not having his license on him, and was placed in a police cruiser. Police then searched the truck and found baggies with meth under the seat he was sitting in.
The Court of Appeals noted there was no reason the police could not have gotten a warrant to search the vehicle, presumably expressing that there was no exigent circumstances to justify a warrantless search. The Court accepted that Turner was acting nervously, “a fact of dubious importance,” and making movements with his hands. The Court held, “[T]here are notable exceptions that authorize warrantless searches, but, as forcefully reiterated in Arizona v. Gant, those exceptions have not swallowed up the rule.” It was for the judiciary to decide if one applied.
Contributed by Kathleen Schmidt