NC: Dog alert on car no PC as to removed passenger’s person

A dog alert on a car where the occupants are removed does not give probable cause to search their persons, at least the passenger. State v. Smith, 2012 N.C. App. LEXIS 943 (August 7, 2012):

We note that in Whitehead [v. Commonwealth, 278 Va. 300, 683 S.E.2d 299 (2009)], the Commonwealth had a stronger case for probable cause to search the passengers than was present in the instant case. In Whitehead, the drug dog “hit” on the vehicle while defendant was inside of the vehicle, whereas in the instant case, the drug dog “hit” on the vehicle while no one was inside. We also note that the drug dog hit at the driver’s door, and that defendant was a passenger.

“The textual touchstone of the Fourth Amendment is reasonableness. When applying this basic principle, the Supreme Court has consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.” State v. Shearin, 170 N.C. App. 222, 240, 612 S.E.2d 371, 384 (2005) (quoting Alvarez v. Montgomery County, 147 F.3d 354, 358 (4th Cir. 1998)). Given the specific facts of this case, we hold that it is factually more similar to Anderson and Whitehead then to Anchondo. We note that the rationale of Anchondo has been specifically rejected by Anderson, Gibson, Wallace, and Fondia. Further, we hold the logic of Anderson and Whitehead to be more compelling than that of Anchondo. The fact that defendant was formerly a passenger in a motor vehicle as to which a drug dog alerted, and a subsequent search of the vehicle found no contraband, is not sufficient, without probable cause more particularized to defendant, to conduct a warrantless search of defendant’s person.