dissenting.
The fourth amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Supreme Court carved a niche out of this guarantee when it decided Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court there determined that the need for police to protect themselves should be balanced with the rights of the individual suspect. To that end, they held that:
where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area of conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Id. at 3, 88 S.Ct. at 1871. Thus, an officer may “stop and frisk” the outer clothing to assure himself or herself that the suspect will not pull out a weapon. This authority does not, however, grant carte blanche to police officers to search anyone off the street for potentially incriminating evidence, simply because he or she appears suspicious.
In the case at bar, appellant was wearing shabby clothes in a nice hotel, he had just left a room of that hotel with an expensive attache case, and the police had overheard suspicious conversation through the door. These facts, viewed as a whole, create reasonable, articulable suspicions sufficient to allow an investigatory “stop and frisk.” If that had been the result, there would have been no error. However, the police exceeded the bounds of the permitted protective pat-down for weapons, and searched for other possible evidence of crime, to the point of even telling the suspect they were searching for drugs. Therefore, the small marijuana packet seized from appellant’s pocket during the excessively intrusive search of his person should have been excluded as evidence at trial.
The majority contends that the search of appellant was justified, not under Terry, but as a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This exception is another niche carved out of the fourth amendment allowing some limited searches without warrants supported by full probable cause. To allow such an exigency, there must be a lawful, full-custodial arrest of the person searched. Further, such an arrest may be made for a felony only if supported by full probable cause to believe a felony has been committed and the suspect has committed it. United States v. Watson, 423 U.S. 411, 421, 96 S.Ct. 820, 826-27, 46 L.Ed.2d 598 (1976).
There was insufficient probable cause in the case at bar to support an arrest of appellant. To determine whether the probable cause is enough, one must examine all the facts and circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Although the facts as before listed in this opinion do tend to lead a police officer to reasonably conclude that criminal activity is afoot, they are certainly not enough to support a finding of probable cause. Thus, without the requisite probable cause to render an arrest valid, a search incident to this arrest must certainly fail to pass constitutional muster.
For these reasons, I respectfully dissent.