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McCormack v. State

Although evidence authorized the trial court to find that the defendant consented to the officer removing a pill box from his pocket, the State failed to show that the defendant consented to the officer's opening of the box.

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After a bench trial, James McCormack was convicted of two counts of possessing a controlled substance alprazolam and hydrocodone,1 two counts of possessing drugs not in the original containers,2 and being a pedestrian on the roadway.3 On appeal, McCormack contends, inter alia, that the trial court erred by denying his motion to suppress evidence obtained after police stopped and searched him. For the reasons that follow, we hold that the state failed to prove that the officer’s opening of a pill container found in McCormack’s pocket was justified on the bases claimed below, and therefore reverse the judgment of conviction on the controlled substances charges. However, because the conviction for being a pedestrian on the roadway was not based on unlawfully seized evidence, and McCormack has not asserted error in connection with that conviction, that conviction is affirmed.

1. McCormack contends that the trial court erred by denying his motion to suppress evidence obtained during a stop and search of his person. Specifically, he asserts that the warrantless search and seizure were not justifiable based either on Terry4 or on his consent, as argued by the state. We agree.

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