A drug dog alerted on defendant’s car, so the police searched it, coming up empty. That alone did not justify taking the occupants in to the police station for a strip search. Thomas v. State, 2016 Ind. App. LEXIS 457 (Dec. 21, 2016):
P23 All three cases expressly rely on Di Re, Ybarra, or both, and reject the reasoning of a federal case, United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998), that supports the State’s position here that probable cause to search the vehicle in which Thomas was traveling was sufficient to permit his detention and transportation for a strip search. Smith, 729 N.E.2d at 259-61 (following Whitehead); Whitehead, 683 S.E.2d at 315; Kay, 2009 WL 2918523 at *5. In Anchondo, a dog sniff indicated the presence of narcotics in a vehicle in which Anchondo and another man, Garcia, were traveling, but no contraband was found in the vehicle after a search. A second dog sniff again yielded an indication that drugs were in the car and border patrol agents performed pat-down searches of Anchondo and Garcia. Patting down Anchondo, one of the agents felt a hard object near Anchondo’s waistband that he believed to be a handgun but which turned out to be four packages of cocaine strapped to Anchondo’s body.
P24 Relying largely on its own precedent, the federal Tenth Circuit held that the dog sniffs’ indications of the presence of narcotics were sufficient to give rise to probable cause to search the vehicle and its occupants: “A canine alert provides the probable cause necessary for searches and seizures.” Id. at 1045 (citing United States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir. 1993)). Noting that the dog alerted twice, and expressly applying its precedent in Ludwig, the Tenth Circuit reasoned in Anchondo, “[e]ven if the subsequent fruitless search of the car diminished the probability of contraband being in the car, it increased the chances that whatever the dog had alerted to was on the defendants’ bodies.” Id. at 1045; but cf. Whitehead, 683 S.E.2d at 314-15 (holding that, after a drug dog alerted at a vehicle, fruitless searches of a car and three occupants did not, by process of elimination, allow a physical search of a fourth occupant).
P25 We think the rationale of Kay, Whitehead, and Smith to be the more persuasive one. Probable cause is to be particularized to the premises, vehicle, or person to be searched. Here, police had information from an informant concerning two unnamed men who would be traveling through Marion. A concededly constitutionally permissible traffic stop was initiated. The two men in the van, Thomas and Christmas, were nervous upon being stopped, but the record is devoid of any mention that they appeared to be hiding anything from police. A concededly constitutional dog sniff at the driver’s door indicated the presence of drugs in the vehicle, but a search of the vehicle was unavailing. The dog sniff did not provide specific information as to either Thomas or Christmas, and police did not use the dog to sniff either of the two men’s bodies.
P26 In recognition of the Fourth Amendment’s “significantly heightened protection of … one’s person,” Houghton, 526 U.S. at 301, we do not think that the Fourth Amendment authorizes a process-of-elimination practice absent information particularized to the individuals under suspicion. That Christmas consented to a search did not mean that Thomas was required to do likewise. Rather, police simply engaged in a kind of process of elimination: they could not find drugs in the car, and so they assumed the drugs must have been on either Christmas’s or Thomas’s person. Refusing to consent to a personal body search does not create probable cause to believe he was the individual holding the drugs. And while, in many situations, any of a number of a vehicle’s occupants may properly be considered to exercise dominion over contraband in the vehicle, Maryland v. Pringle, 540 U.S. 366, 372 (2003), that rationale avails when contraband is found in the vehicle. Here, there was no contraband in the vehicle, and under circumstances like these the probable cause arising from a drug dog’s alert to a larger area like a car does not permit a fishing expedition into the pockets of each of the car’s occupants.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)