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However, even a Terry search would not have permitted to officer to further investigate or search any soft lumps or other contents of pockets not indicative of possession of a plausible weapon (Dershowitz, 2002). Furthermore, absent evidence that Terry and Kim were jointly engaged in criminal conduct, even a valid search of Terry pursuant to a valid arrest that yielded a small amount of marijuana in his pocket would not have justified a separate search of Kim (Schmalleger, 2008).
In this case, the search of both subjects was improper because it was conducted incident to an invalid arrest. Therefore, either Kim or Terry may challenge the introduction of any contraband retrieved from their personal possession.
Evidence of Amphetamine Possession:
Ordinarily, evidence discovered in the glove box pursuant to a validly executed search based on probable cause or voluntary consent is admissible against the owner/operator of the vehicle. In the cases of a vehicle owned by someone other than the driver, evidence discovered through consent to search provided by the driver or a search based on probable cause at the scene is admissible against the driver. The driver may refute his ownership or knowledge of the contraband, but not the manner of its discovery.
However, in this case, the amphetamines were discovered through an impermissible violation of Terry's REP and are, therefore, inadmissible against either Kim or Terry. Had the glove box yielded the same evidence pursuant to a valid search, Kim would be in a better position than Terry because the amphetamines possession would have been imputed to him and not Kim, at least absent any independent evidence connecting it to Kim.
Evidence of Marijuana Paraphernalia Possession:
Ordinarily, evidence properly discovered under the driver's seat would be admissible against the driver because possession would be imputed to him. Likewise, evidence properly...
In this case, both Kim and Terry could also have raised the defense involving Terry's non-ownership of the vehicle. However, since the detention of the subjects at the scene after the officer ascertained that his initial concerns about the vehicle's license plate were unfounded, either Kim or Terry may challenge the admissibility of the marijuana pipe.
On the other hand, had the marijuana pipe been discovered by an external K-9 search of the vehicle during a reasonable time period required by the original officer to confirm the ownership and registration of the vehicle, that evidence could have been introduced against Terry under the doctrine of constructive possession (Schmalleger, 2008), subject to his factual defense arising from his non-ownership of the vehicle.
Since the K-9 search was not conducted until after the subjects were both under investigative detention or invalid arrest (the fact pattern does not specify) predicated upon the illegal search of the glove box, the introduction into evidence of the pipe discovered under the seat may be challenged by either Kim or Terry.
References:
Dershowitz, A. (2002). Shouting Fire: Civil Liberties in a Turbulent Age. New York:
Bantam Books.
Friedman, A. (2005). A History of American Law. New York: Touchstone.
Schmalleger, F. (2008). Criminal Justice Today: An Introductory Text for the 21st
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