NM: No PC shown for arrest of passenger, too

There was no probable cause for arrest of a backseat passenger in a car from which a drug deal had earlier been done. Officers here were directed to stop and arrrest everybody, but there were no facts to tie defendant to the crime. State v. Morales, 2008 NMCA 102, 144 N.M. 537, 189 P.3d 670 (Ct. App. 2008), certiorari denied, No. 31,152, June 26, 2008:

[*14] “[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Rather, “some additional circumstances from which it is reasonable to infer participation in a criminal enterprise must be shown.” United States v. Burrell, 963 F.2d 976, 986 (7th Cir. 1992) (internal quotation marks and citation omitted). “One important consideration in assessing the significance of the association is whether the known criminal activity was contemporaneous with the association. Another is whether the nature of the criminal activity is such that it could not normally be carried on without the knowledge of all persons present.” United States v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984) (citations omitted).

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[*18] In Maryland v. Pringle, 540 U.S. 366, 371-72 (2003), the Supreme Court held that the police had probable cause to arrest the defendant based on the officer’s belief that the defendant had committed a crime based on his presence in a car in which cocaine was found hidden when all of the occupants denied knowing whose it was. We distinguish Pringle on grounds that, under the federal constitution, a warrantless arrest is supported by probable cause when a felony or a misdemeanor is committed in the presence of an officer. Id. at 369-70. Probable cause in Pringle existed because of the presence of cocaine in the car and the universal denials by its occupants, leading the officer to believe that a felony had been committed by at least one of them. Id. at 370. The Court in Pringle stated that it was an “entirely reasonable inference … that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine.” Id. at 372. No such connection exists here. The drug sale took place elsewhere, and Defendant’s mere presence in a vehicle which the driver left to make the drug sale is insufficient to establish probable cause as a matter of law. While it is tempting to implicate Defendant in Cisneros’ crime, the evidence concerning Defendant is just too thin to do so.