IN: Dog alert on car that leads to search that came up empty didn’t permit strip search of the occupants

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.

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