Washington again rejects federal search incident rule; after search of car, suspicionless use of drug dog as a part of search incident was unreasonable under state constituiton

Washington again rejects federal rule for search incident. Defendant’s car had already been searched incident to his arrest, and he was in custody. Officers then brought in a drug dog for a suspicionless sniff, and the dog alerted. This was an unnecessary expansion of the search incident under the state constitution. State v. Valdez, 152 P.3d 1048 (2007):

But before Dennison called for a K-9 unit he had placed Valdez in the patrol car; there was another officer on the scene; and he had completed his search of the passenger compartment of the vehicle for weapons or destructible evidence. Unlike the officer in Boursaw, he found no weapons, destructible evidence, or evidence of drugs or illegal activity other than loose plastic paneling under the dash. At that point, concerns about officer safety and destruction of evidence did not provide on-going exigent circumstances allowing another warrantless search. Vrieling, 144 Wn.2d at 494; see Stroud, 106 Wn.2d at 152.

Furthermore, it was not until the drug dog alerted while searching the vehicle that probable cause existed to search for the presence of a controlled substance. “Generally, an ‘alert’ by a trained dog is sufficient to establish probable cause for the presence of a controlled substance.” State v. Jackson, 82 Wn. App. 594, 606, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006, 932 P.2d 644 (1997). But here, the drug dog alerted during a second search following Dennison’s initial search after both the driver and passenger were removed from the vehicle; the scene had been secured by two officers; and the initial search only revealed missing screws and loose front seat-area paneling.

The officers could have applied for a warrant to conduct a second search of the vehicle based on the facts the State relies on to justify the K-9 search after Valdez’s arrest and the impoundment of the vehicle. See State v. Simpson, 95 Wn.2d 170, 189, 622 P.2d 1199 (1980) (holding that a motor vehicle may be impounded if there is probable cause to believe that it was used in the commission of a felony). But the record before us does not show probable cause sufficient to warrant a second search for drugs based on the presence of loose paneling and screws and a perceived inconsistent statement about the origin of Valdez and Ruiz’s travels. Without the K-9 unit’s alert, the officers would not have removed the cup holder and insulation, revealing the presence of drugs. Although it turned out that the officer’s suspicion was justified, it was not proper under these circumstances to commence an independent second search, focused solely on the presence of illegal substances, by calling in a K-9 unit without some evidence of the presence of drugs.

Driver-owner of car could consent to search of car over objecting passenger. State v. Lucero, 2007 UT App 36, 2007 Utah App. LEXIS 39 (February 8, 2007).

A defendant [almost always] has standing to challenge the search of his person. The state cast the argument in terms of the defendant not having standing in his search in the backyard of a friend’s house, but the issue was really whether he had standing to challenge the search of his own person. The trial court’s suppression order was affirmed. State v. Gabbert, 213 S.W.3d 713 (Mo. App. W.D. February 13, 2007).

There was a fair probability that evidence in a homicide case would be found in defendant’s possession five days after the murder. United States v. Rodriguez, 2007 U.S. Dist. LEXIS 10016 (D. N.D. February 12, 2007).*

Defendant did not show a Franks violation. Pence v. Zifcak, 2007 U.S. Dist. LEXIS 10172 (D. Md. February 7, 2007)*:

Plaintiff may disagree with some of Defendant Zifcak’s conclusions, but there is no evidence that he knowingly or recklessly made false statements. Defendant Zifcak consulted the original investigators to ascertain whether there was any complaint of a physical injury originally and spoke to a doctor whose name and number were provided by Plaintiff. Thus, Plaintiff has not presented evidence sufficient to pursue a Fourth Amendment claim against Defendant Zifcak.