D.Minn.: Backseat passenger of driver doing hand-to-hand transactions subject to frisk

The driver of the car defendant was a backseat passenger in conducted hand-to-hand transactions, and that give probable cause for a search of the car by the automobile exception. The search of the backseat passenger was valid as a frisk with reasonable suspicion. United States v. Adams, 2015 U.S. Dist. LEXIS 143490 (D.Minn. Oct. 22, 2015), rejecting 2015 U.S. Dist. LEXIS 144217 (D.Minn. Aug. 5, 2015). From the R&R:

However, the automobile exception, by itself, does not allow police officers to search the person of a passenger in a vehicle. See United States v. Di Re, 332 U.S. 581, 587 (1948) (holding that probable cause to search a car did not justify a body search of the passenger); see also Wyoming v. Houghton, 526 U.S. 295, 307-08 (1999) (Breyer, J., concurring) (“[T]he [automobile exception] rule applies only to containers found within automobiles. And it does not extend to the search of a person found in that automobile. [T]he search of a person, including even a limited search of the outer clothing … is a very different matter in respect to which the law provides significantly heightened protection.”) (internal quotation and citation omitted). In order to search a person, police officers must have probable cause that is particular to the person being searched-mere proximity to another person suspected of criminal activity is not enough. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person.”); see also Sibron v. New York, 392 U.S. 40, 62-63 (1968).

Here, the Court concludes that Officer Werner did not have sufficient particularized probable cause to search Adams for drugs or other contraband. The suspected fourth drug transaction transpired between M.E.L. and the front-seat passenger, not Adams. Although Officer Werner claims to have observed suspicious behavior on the part of Adams as he approached the vehicle, the Court finds that none of these actions give rise to probable cause sufficient to search his person. Any sudden change in Adams’ demeanor or posture is easily explained as a natural or common reaction to a sudden and unexpected police presence. In addition, the fact that Adams placed an object in the map pocket of the seat in front of him only serves as further probable cause to search the vehicle for contraband, not Adams’ person. Consequently, the Court concludes that Officer Werner was not justified in searching Adams for evidence of the suspected fourth drug transaction.