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Illegal Search of Car Passenger Results in Suppression of Evidence

By Deborah Elkins
November 17, 2008

The record supported a trial court’s suppression of cocaine residue found on a plastic spoon in the pocket of an auto passenger where the audio/videotape of the encounter between the officer and the passenger did not clearly indicate the passenger’s response when the officer asked if he could search the passenger, the Court of Appeals holds.

It is undisputed that the officer did not have probable cause or even a reasonable suspicion that the passenger was involved in criminal activity at the time he began searching defendant. The officer testified he had no objective reason to suspect defendant possessed drugs before the search. Unless defendant voluntarily consented to the search, his motion to suppress was properly granted.

There was conflicting evidence on the issue of consent, an issue the prosecution had the burden of proving. The police officer said that defendant had consented; the driver and the passenger said he did not; the trial court could not hear defendant consent while listening to the tape. Given this evidence, we cannot say as a matter of law that granting defendant’s suppression motion was plainly wrong or without evidence to support it.

Suppression order is affirmed.

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