ND: Defendant’s pockets are not “containers” subject to search under the automobile exception

When a dog alerts on a car, and the defendant is in the car, the defendant’s pockets are not “containers” subject to search under the automobile exception because of the heightened privacy interest in one’s person. State v. Gefroh, 2011 ND 153, 801 N.W.2d 429 (2011):

[*P13] We hold the automobile exception did not justify the warrantless search of Gefroh’s person. The dog-sniff of the vehicle established probable cause the vehicle contained a controlled substance, but the pockets of the clothes Gefroh was wearing were not “containers.” The State also argued that Gefroh, as the driver of the vehicle, was part of the contents of the vehicle. The State offers no support for its arguments that would render Gefroh a container or contents of the vehicle, rather than a person entitled to “heightened protection” against searches of his person. The district court correctly decided the automobile exception justified the search of the vehicle, but not Gefroh’s person. The district court correctly ordered the cocaine evidence suppressed.

Defendant has no standing on the face of his motion: He was a passenger and his consent was not required. United States v. Lopez, 2011 U.S. Dist. LEXIS 91349 (S.D. N.Y. August 16, 2011).*

Officers are not required to schedule a search at a time when defendant is not home or excuse him while they search. United States v. Fautz, 812 F. Supp. 2d 570 (D. N.J. 2011).*

While Eighth Circuit case law suggests that one driving a rental car with the permission of the renter might have standing, in this case he wouldn’t. The car was overdue, and the rental car company was trying to get it back and told the renter she was no longer authorized to have it. United States v. Lumpkins, 2011 U.S. Dist. LEXIS 91357 (W.D. Mo. July 6, 2011).*