State v. Braxton

SMITH, Judge.

We must first decide whether the initial search of defendant’s vehicle was lawful. If it was not, the seizure of the first bag of marijuana was unlawful. Fruits of an unlawful search are not made lawful by the discovery of contraband. Byers v. United States, 273 U.S. 28, 71 L.Ed. 520, 47 S.Ct. 248 (1927).

Defendant contends that the uncontroverted facts fail to establish probable cause for the warrantless searches of his vehicle. We agree.

This Court has previously held that gestures which are not clearly furtive are insufficient to establish probable cause for a warrantless search…