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People v. Smith1/30/2004
own of a person before a police officer places the person in a squad car is wholly reasonable. We recognize that police policy mandates pat-downs for the general safety of the officer. Nevertheless, evidence gleaned from such a search will only be admissible in court if there are particularized issues of safety concerns about the defendant." Hart, 249 Wis. 2d at 345-46, 639 N.W. 2d at 220. Therefore, if the true motivation of the search-incident-to-police-car-ride is officer safety rather than criminal investigation, the State should have no objection to suppressing the fruits of a search conducted without reasonable suspicion of criminal activity. Hart presents an alternative to the majority's holding in this case, but I neither endorse nor reject Hart because I conclude that these issues need not be decided here.
C. Conclusion
In conclusion, I reject the State's proposition that the officers could have arrested defendant if he had attempted to walk from the scene. The trial court was not manifestly erroneous in concluding that defendant's due process rights were violated and his consent was invalid because Officer Driscoll incorrectly implied that he was not free to leave the scene on foot. See generally People v. Daugherty, 161 Ill. App. 3d 394, 398-400 (1987) (when a law enforcement officer uses deception and his official position to induce a defendant to consent to a search, the search may be coercive and the consent invalid). The majority has unnecessarily and substantially curtailed the fourth amendment protections of motorists who become stranded on this state's roadways. The sweeping new rules announced herein authorize the government to search pedestrians under the guise of providing a "courtesy ride" during a community caretaking encounter. This opinion could be construed as condoning the seizure and search of any person whose status as a stranded pedestrian, in the officer's sole opinion, creates a risk of harm to the pedestrian or other motorists. I conclude that the motion to suppress was correctly granted in this case, and for the preceding reasons, I respectfully dissent.
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