252 A.2d 909 | D.C. | 1969
This appeal questions the validity of a conviction for unlawful possession of marihuana.
Appellant was stopped by a police officer for a traffic violation (backing when such movement could not be made with safety) and because he was an “out of state” driver (he had a California driver’s license and his automobile bore California registration tags), he was required to drive to the police precinct to post collateral. At the precinct appellant was unable to produce the required collateral,
There are numerous cases in this jurisdiction and elsewhere dealing with the legality of the seizure of articles found in automobiles. We need not enter into a discussion of all those cases. It is enough to say we found no case whose facts fit the present case. Here the automobile itself had not been lawfully seized by the police,
The Government attempts to justify the seizure on the ground that the cigarette case was in plain view and had been seen by the officer and that he did not return to the automobile to search it but simply to retrieve that which he had already seen, and therefore there was no unlawful search, but the Fourth Amendment protects against both unlawful searches and seizures. Surely no one would contend that a police officer, upon stopping a motorist for a traffic violation, has the right to seize anything he sees in the automobile regardless of its nature.
The arresting officer was not a drug or narcotic expert and he gave no reason for suspecting that the tablets contained drugs or narcotics. He merely said he “became suspicious of the contents of the bottle” and he “went out to get the cigarette case to find out what was in there, mainly because of the influence that the pills had on me.” Suspicion alone does not constitute probable cause and it is plain the officer’s action was based on nothing more than suspicion. We hold that the cigarette case and its contents were unlawfully seized and the motion to suppress should have been granted.
Reversed.
. D.C.Code 1967, § 33-402(a).
. A companion of appellant who was in the car at the time it was stopped had gone to attempt to secure the required collateral which we understand was either $5.00 or $10.00.
. See Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).
. See Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).
. See Coates v. United States, U.S.App.D.C. (decided April 7, 1969) ; Creighton v. United States, 132 U.S.App.D.C. -, 406 F.2d 651 (decided November 26, 1968).
. See Hiet v. United States, 125 U.S.App.D.C. 338, 372 F.2d 911 (1967).