Last August, the court of appeals in State v. Smith, ___ N.C. App. ___, 729 S.E.2d 120, temp. stay granted, __ N.C. __, 731 S.E.2d 179 (mem.) (2012), decided an issue of first-impression related to a drug dog alert and the reasonableness of an ensuing Fourth Amendment search. Since we haven’t yet blogged about Smith, which is doubtless of interest to folks interested in North Carolina criminal law and is fresh in my mind as a result of my recent preparations for a fall criminal law case update, I thought I’d pen a few words about the case.
The defendant in Smith and two other men were standing outside a 1972 Chevrolet in a gas station parking lot around 11 p.m. on September 11, 2010, while the driver of the car, Leach, pumped gas. The defendant stood next to the right front passenger door and another passenger, McCray, stood by a rear passenger door. Officer McDonald of the Winston-Salem Police Department approached the car—not to ask the question on my mind – “Who is your mechanic?”―but instead to tell Leach that the music playing inside the car was too loud. McCray apologized, reached into the vehicle, and turned the music down. Officer McDonald asked for Leach’s driver’s license and the vehicle registration, returned to his patrol car, and requested an additional unit. Two other officers arrived and asked the passengers for identification. Officer McDonald checked the defendant’s criminal history and found “‘an extensive local record which included numerous drug offenses,’ including possession of marijuana in June 2010.” Based on the criminal histories of all three men, Officer McDonald requested the assistance of a K-9 officer. He then began to prepare a citation for a noise ordinance violation. At this point, Leach and McCray “became verbally aggressive with the officers,” and were warned about their conduct. Defendant remained calm. McCray left the gas station.
The K-9 officer and drug dog arrived after Officer McDonald had returned Leach’s driver’s license and the vehicle registration and had begun to explain the citation. At this point, twenty minutes had expired since the officer first approached the men. Officer McDonald placed Leach and the defendant at the back of his patrol car while the dog sniffed the outside of Leach’s car. The dog alerted at the driver’s door.
Officer McDonald then searched the car, finding an open container of alcohol in the back seat but no drugs. The other officers searched Leach and the defendant. An officer discovered cocaine on the defendant, and the defendant grabbed the cocaine and threw it. The defendant was indicted for felony possession of cocaine and for resisting a public officer.
The defendant moved to suppress the drugs as the fruit of an unlawful search of his person. The trial court granted the motion and the State appealed, arguing that the drug dog’s alert to the motor vehicle provided probable cause to search the vehicle and its recent occupants for the source of the odor. Noting at the outset that the search of the motor vehicle following the drug dog’s alert was proper, the appellate court characterized the issue of whether a drug dog’s positive alert provided probable cause to search the person of a recent passenger of the vehicle who was outside the vehicle at the time of the alert to be a question of first impression.
The court distinguished the first authority cited by the State, United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998), in which the Tenth Circuit held that a positive alert given by a drug dog followed by a negative search of the vehicle provided probable cause to arrest the defendant-driver. The Smith court noted that Anchondo did not specify whether the defendant was inside or outside of the vehicle at the time of the search. In addition, the positive alert in Anchondo was made on the defendant’s own motor vehicle, unlike the alert in Smith, which was an alert for a vehicle in which the defendant merely had been a passenger. The North Carolina Court of Appeals noted that several other state courts had rejected Anchondo, including the Supreme Court of Kansas in State v. Anderson, 136 P.3d 406 (Ka. 2006), which concluded that officers lacked probable cause to arrest the driver of a vehicle after a drug dog alerted and no drugs were found in the vehicle.
The Smith court found the logic of Anderson and of the Virginia Supreme Court in Whitehead v. Commonwealth, 683 S.E.2d 299 (Va. 2009), more persuasive than Anchondo. The defendant in Whitehead was right rear passenger in car stopped for traffic violation. While the Whitehead defendant and others were in the car, a drug dog led around the car alerted. When the search of the vehicle turned up empty, the officers searched the occupants. Whitehead had drugs on his person. The Virginia Supreme Court held that, absent some additional incriminating factors, a positive canine alert as to motor vehicle on its own does not establish probable cause sufficiently particularized as to a passenger to allow the search of his or her person. Relying upon United States v. Di Re, 332 U.S. 581 (1948), and Ybarra v. Illinois, 444 U.S. 85 (1979), Whitehead ruled this sort of mere proximity to criminal activity insufficient to establish probable cause.
The court of appeals in Smith similarly concluded that defendant’s having been a passenger in a motor vehicle as to which a drug dog alerted and which was found to contain no contraband did not, without more, provide probable cause to conduct a warrantless search of the defendant’s person. Thus, the court of appeals affirmed the trial court’s ruling granting the defendant’s motion to suppress.
It is not clear how Smith applies to facts that differ even in relatively minor ways from its own. For example, could the officers have searched the defendant had he been inside the vehicle when the dog alerted? I’m doubtful that a post-Smith court would find such a search supported by probable cause, absent additional particularized suspicion, but Smith does not squarely address this issue. On the one hand, Smith cites as support Whitehead, a case in which the Virginia Supreme Court found that a drug dog’s alert to an occupied motor vehicle did not, standing alone, establish probable cause to search a passenger who was in the motor vehicle. On the other hand, without intimating disagreement with the Virginia Supreme Court’s reasoning, Smith characterizes Whitehead as creating a “stronger case for probable cause” than existed in Smith.
What if the defendant in Smith had been the driver of the vehicle? Would the dog’s alert, the search that came up empty, and the defendant’s control of the car have provided probable cause to search his person? Smith does not answer this question. Perhaps the Smith court’s reliance upon Anderson, a case in which the Kansas Supreme Court concluded that the search of a driver was unsupported by probable cause where it rested merely upon the fact that a drug dog alerted to the driver’s car and no drugs were found in the vehicle, indicates that it too would find such a search unlawful. Yet the Smith court’s repeated references to the defendant’s status as a passenger in the vehicle make it clear that the court left this question unresolved.
A few weeks after Smith was decided, the state supreme court granted the State’s request for a temporary stay. Stay tuned to see if the state’s high court agrees to review the case.