Two African American males aged 20 and 22 are traveling south on interstate 77 from Virginia. The date is October 15, and the time is approximately 7:15 PM. The men are driving in a 1993 Mitsubishi Gallant through a small, predominately white town in North Carolina, with the lights turned on but apparently without working taillights. The sun has not set and many drivers have yet to turn on their lights. Later, in a motion to suppress hearing, the arresting officer testified on cross-examination that he would not have pulled the defendant's car over if the lights had not been turned on (because he would not have known the taillights did not work) . Additionally, the defendant had given the officer no other reason to pull the car over.

The white officer pulls the defendants over and asks for license and registration. While the passenger is looking through the glove compartment for the asked for information, the officer spots a "tobacco-like product" in the console area between the two defendants. The officer later testifies that he could not smell marijuana or alcohol at the time in the car or on the person of the driver and that he could not tell whether the "tobacco-like product" was hand rolled or made by a manufacturer. Further, the officer testified that he had previously received drug training and that he had never made a drug arrest. The officer testifies that he immediately suspected that the "tobacco-like product" was marijuana. The officer asks the driver to hand over the item in controversy and immediately identifies the substance as marijuana. The officer asks the driver to get out of the vehicle and places him under arrest for the misdemeanor offense of possession of a minimal amount of marijuana.

The officer later testifies that he could have simply chosen to write the driver a ticket for possession instead of arresting him. The officer placed the driver in his patrol car and proceeded to ask the passenger to get out of the vehicle and answer some questions. While listening to the officer's questions the passenger decided that he no longer wanted to be there and ran into the woods. The officer called for back up and several officers searched the woods for approximately one half- hour. (The passenger was arrested the next morning in a truck stop less than one mile away.) One of the officers that arrived to help with the search, officer Friday, was specially trained in the area of drug enforcement and had with him his drug detecting dog Mary Jane. Officer Friday did not want to risk Mary Jane on the busy highway so the decision was made to tow the vehicle to a local gas station.

Once at the gas station Mary Jane detected an illegal substance emanating from the trunk and the rear deck speakers. The officers then opened the trunk and found 98 pounds of marijuana. The motion to suppress hearing was held in the small town in front of the local judge. The motion was denied. The defense attorney appeals, what result?

Submitted by Flint Watt

Wake Forest University

Answer

(A)When the police make a lawful custodial arrest of the occupant of an automobile, they may then search the car's entire passenger compartment as well as the contents of any containers.  New York v. Belton

(B) The search incident to arrest exception applies to arrests for minor crimes such as traffic violations.  The police may arrest someone for a minor violation merely as a pretext to perform a search incident to arrest of the automobile.  U.S. v. Robinson