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Search & Seizure – Auto Passenger – Drug Dog – Vehicle Alert

An auto passenger’s conviction of heroin possession is affirmed by the Court of Appeals, despite the passenger’s claim he should not have been searched just because a narcotics dog alerted on the vehicle, but not on him in particular.

Suffolk police stopped the car, in which defendant was the right rear passenger, for a traffic violation. One of the officers walked Xanto, a dog trained to detect drugs, around the car. Xanto “alerted” to the scent of narcotics at the driver’s door. The officers then asked the car’s occupants to get out so they could search the car. As the officer explained on cross-examination, Xanto’s alert at the driver’s door did not mean the drugs were located at the driver’s side of the car, only that it was where the dog had the “best airflow” to catch the scent of the narcotics – a scent that could have been coming from anywhere in the car or any of its occupants. After the officers found nothing in the car, they searched each of the car’s occupants. The search of the first three passengers was unproductive. Defendant was the last person searched. In his pants pocket the officers found two syringes as well as a paper towel that had a beer bottle cap wrapped up in it containing a “burning residue” the officer, relying upon his training and experience, believed to be heroin.

Defendant argues that Xanto’s alert to the presence of narcotics in the car did not provide the police with the particularized probable cause they needed in order to search him. We disagree, Even if we assume arguendo that a trained dog’s detection of the scent of drugs coming from an occupied car does not, of itself, provide sufficiently particularized probable cause to search each of the car’s occupants for drugs, we still conclude on these facts that the search of defendant’s person did not violate the Fourth Amendment. We find the 10th Circuit’s decision in U.S. v. Anchondo, 156 F.3d 1043 (10th Cir. 1998), persuasive.

In the instant case, the officers had probable cause to search the car following Xanto’s alert. By the time the officers searched defendant, they had probable cause to search his person through the process of elimination. Each fruitless search – of the car and the other occupants of the car – increased the likelihood that defendant possessed the odorous contraband detected by Xanto’s trained nose. While it may have been more a result of luck rather than a profound understanding of the Fourth Amendment, we hold that by the time the officers searched defendant they possessed the necessary probable cause to justify the search. Accordingly, the trial court did not err in refusing to suppress the evidence.

Conviction of heroin possession affirmed.

Whitehead v. Commonwealth (Petty, J.) No. 0040-08-1, Nov. 12, 2008; Suffolk Cir.Ct. (Delk) David W. Cassidy, APD, for appellant; Joanne V. Frye, AAG, for appellee. VLW 008-7-481, 6 pp.

VLW 008-7-481

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