Fortney v. State

I respectfully dissent.

I have never heard of and dispute the theory that a search is lawful if it “was undertaken under circumstances which would have given the deputy probable cause to arrest and therefore was incidental to a lawful arrest.” Even if there is such a theory the facts here do not indicate probable cause to arrest. The only witness to testify at the motion hearing was a female deputy sheriff. She testified that *969after she was dispatched to the nightclub, she was told by the manager that “there was a subject inside who was attempting to distribute cocaine to two of his girls.”…