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Montero v. State

The officer's detaining defendant without probable cause tainted the subsequent search and seizure of a sealed box of marijuana in the truck o defendant's car.

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On interlocutory grant, Angel Samuel Montero appeals the trial court’s denial of his motion to suppress evidence of marijuana found in a closed container in the trunk of his car following a routine traffic stop for tinted windows. Because this case is controlled by DiSanti v. State,1 not Boggs v. State,2 we find that the officer who stopped Montero’s vehicle had no probable cause to detain Montero while he obtained the services of a drug dog to investigate the sealed package in the trunk for which Montero had withdrawn consent to search. Accordingly, we reverse.

In DiSanti, supra, the defendant was initially stopped for speeding. After the officer issued a warning, he asked the defendant if he could search his car, and DiSanti consented. The officer found a package wrapped in birthday paper in the trunk of the car. DiSanti explained that the package was a gift for his daughter. The officer then told DiSanti that he believed the package contained cocaine and asked if he could open it. DiSanti refused to let the officer open the package. The officer told DiSanti he was going to detain him until a drug dog arrived on the scene. When the drug dog arrived an hour later, cocaine was found in the package.

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