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State v. McCaulley6/10/2005
nally justify detaining the driver in the rear of the cruiser."
{ } In the alternative, the state argues that, even if McCaulley's detention in the cruiser was impermissible, the deputy's error was harmless and did not warrant suppression because the cocaine would have inevitably been discovered in the course of a lawful investigation. Specifically, it claims that the cocaine would have been discovered through "a routine inventory search as part of a law enforcement agency's normal booking procedures."
{ } The cocaine was obviously on McCaulley's person rather than in his car when he entered the cruiser, because it was found in the cruiser. In other words, only a search of McCaulley's person would have turned up this evidence, not a search of his car. Thus, to prevail on its argument that the cocaine would have inevitably been discovered, the state must presume that McCaulley would have been arrested and then searched pursuant to that arrest. There is simply no evidence in the record to support this assertion. Deputy Vitali testified that driving without a license is "an arrestable offense," but it is clear from his testimony that he had not yet decided whether to arrest McCaulley when the cocaine was discovered in the cruiser. Therefore, we cannot conclude that the deputies would have inevitably searched McCaulley's person.
{ } The assignment of error is overruled.
{ } The judgment of the trial court will be affirmed.
Judgment affirmed.
BROGAN, P.J., and YOUNG, J., concur.
FREDERICK N. YOUNG, J., retired, sitting by assignment.
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