PD-0931-16 01/25/2017
"Whether there was probable cause to search Appellant's vehicle under the automobile exception to the warrant requirement when he entered a bar where narcotic activity was suspected, left three to five minutes later, and made 'furtive gestures' when police surrounded him to make a traffic stop?"
Marcopoulos entered a bar suspected for narcotics sales, remained for three to five minutes, and then departed in his truck. The undercover officer who was performing surveillance on the bar had seen Marcopoulos there before. Both that officer and a uniformed officer then observed Marcopoulos make "furtive gestures" around the center console of his truck while stopped at a light. After being stopped and arrested for traffic violations, a search of his truck revealed two small baggies of cocaine in and around the center console.
The trial court denied Marcopoulos's motion to suppress, and the court of appeals affirmed. It held that the automobile exception applied because officers had probable cause to believe it contained contraband. It cited his "repeated history of going to a place known for selling narcotics, his uncommonly short time spent at a bar, and his furtive gestures when he noticed a patrol car behind him" in support of the trial court's ruling.
Marcopoulos argues that the circumstances did not provide probable cause to search. First, his "repeated history" of going to that bar was a total of two occasions, and there was no tip or other information suggesting involvement in criminal activity. Second, the court of appeals did not attempt to distinguish his unidentified "furtive gestures" from those which multiple courts have determined are insufficient to provide probable cause to search. Without something akin to the evidence found in the leading automobile exception cases, such as the officer's plain view or a reliable informant, there is nothing on which to support the search.
