By on September 24, 2009

Sit Boo Boo! Sit! (courtesy kansashighwaypatrol.org)

The Virginia Supreme Court on Friday ruled that police may not search vehicle passengers without a specific reason to believe that they may have committed a crime. The case began on April 19, 2006 when Suffolk police officers pulled over a car with four people on board at around 3pm. Once stopped on the side of the road, Officer J.B. Carr used his drug-sniffing dog, Xanto, to check the vehicle in question. Xanto “alerted by sitting and waiting for his reward” on the rear passenger’s side. Officer Jay Quigley ordered the vehicle’s occupants out so that the car could be thoroughly searched. Nothing was found. The police officers then proceeded to search the driver and two of the passengers. Nothing was found. Finally, passenger Travis Stacey Whitehead was searched and officers discovered two syringes and a bottle cap later identified as containing heroin residue. Whitehead was convicted of drug possession and sentenced to serve twenty-two months in jail.

Whitehead appealed, insisting that police cannot simply search every passenger of a vehicle without individualized probable cause for each person examined. He added that police had no reason to suspect him of criminal activity. The Virginia Court of Appeals upheld the conviction, stating that the process of elimination pointed to Whitehead’s guilt. The high court disagreed.

“After the positive alert by the trained narcotics detection dog, Officer Quigley unquestionably had probable cause to search the vehicle,” Justice Cynthia D. Kinser wrote. “However, without something more, the positive alert did not provide probable cause sufficiently particularized as to Whitehead to allow the search of his person.”

The high court examined US Supreme Court precedent on the matter which established the principle that mere proximity to criminal activity does not constitute probable cause justifying a warrantless search. The case law suggested that establishing a common criminal enterprise between the passengers would have been one way to meet the constitutional standard for a proper search.

“The Commonwealth presented no evidence, other than Whitehead’s status as a passenger in the vehicle, indicating that Whitehead and the other passengers were involved in any common enterprise involving criminal activity,” Kinser wrote. “There also was no evidence indicating Whitehead individually was committing, had committed, or was about to commit a criminal offense.”

The court found that the police had a strong suspicion after the drug dog alerted, but that it was just as likely that the dog had responded to an “old odor,” as his handler admitted in court testimony. Performing a search on this weak basis violated the Fourth Amendment, the court found. Courts in Idaho, Illinois and Maryland have also ruled that a drug dog alert is not sufficient to justify the arrest and search of passengers.

The Virginia Supreme Court ordered the case against Whitehead dismissed. A copy of the ruling is available in a 60k PDF file at the source link below.

Source: PDF File Whitehead v. Virginia (Supreme Court of Virginia, 9/18/2009)

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19 Comments on “Virginia: Supreme Court Restricts Search of Car Passengers...”


  • avatar
    ruckover

    Is reason returning to the land?

  • avatar
    GS650G

    Yeah, I have to go with the court on this one. Granted, the nice young man shouldn’t be shooting heroin but use of the dog gave them PC to search the car and the owner operator. If they wanted to pursue searching the passengers then convince a judge to get a warrant. They can make the junkie comfortable while processing the request.

    Many will say that this makes it harder for cops to do their jobs. Sure it does. It also makes for better cases when done more thoroughly. With modern technology they can develop ways to get warrants easier and faster. And if a judge decides it’s not worth it because a judge thinks the case is weak then it doesn’t happen,

    But the enforcement gets the message across. Sometimes a brush with the law is all it takes.

  • avatar
    Mark MacInnis

    Being somewhat to the right of Atilla the Hun, I can’t voice my disagreement vehemently enough.

    One of these days, it won’t be drugs, it’ll be a weapon, which couldn’t be “legally” searched for under this ruling. Then that weapon will be used to kill an innocent bystander or a police officer.

    Liberal judges suck. The process-of-elimination is a big part of deductive reasoning used to solve crimes…..and the court invalidates it?

    Everyday, the inmates control more of the asylum.

    Time to vigilante up….

  • avatar
    Airhen

    Although I support being tough on drugs and users, there has to be limits on searches, otherwise even the law-abiding are going to get caught up in police power. I also certainly support cops, but there are cops that will push the limits of the law in order to score one.

  • avatar
    dingram01

    The process-of-elimination is a big part of deductive reasoning used to solve crimes

    The risk, however, is that the deductive reasoning is extended to apply to everybody, everwhere, all the time. Let’s just search everybody until we find somebody guilty of something.

    I’d be interested to know what prompted the officer to get out the k-9 to sniff around this car. Was there probable cause for THAT search? If I get pulled over in a car that some mechanic with pot-stenched fingers worked on and the dog alerts, am I going to have to spend half my afternoon while they tear my car apart looking for something that isn’t there?

    Enforcement-at-all-costs comes with a very high cost. At some point we lose our ability to function if police searches dominate our time. Preventing police officers from making their own version of laws on the spot prevents abuse of power. This is far from a liberal principle. It’s conservative.

  • avatar
    George B

    Why did the police bring a 2nd unit with a drug sniffing dog to the scene of a traffic stop in the first place? What was the probable cause that justified a search of the vehicle on top of the original traffic stop? Since nothing was found except a passenger with some used drug paraphernalia, justification for the search after a traffic stop seems very weak.

    Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

  • avatar
    carguy

    This is really a borderline case as the sniffer dog had given the officer in charge had a very good reason to suspect that there were drugs in the car.

    However, the line has to be drawn somewhere. I’m sure we could also prevent/solve a lot of crime by randomly searching people as they go about their everyday business and this would probably save lives and help law enforcement. You could argue for this policy by claiming “If you have nothing to hide you have nothing to fear” but we all know that this would be an unacceptable erosion of our civil liberties. Let’s face it, all civil liberties hinder law enforcement but that’s OK because Americans generally value their freedoms as well as the rule of law and are prepared to live with a compromise between the two.

    As for those who support extended police power with the argument “If you have done nothing wrong you have nothing to fear”: you’re being way too trusting of the motivations of people that make up the definitions of “wrong”.

  • avatar
    fendertweed

    @Mark MacInnes…

    being to the left or the right of Attila or anyone isn’t the point … ignorance and constitutional rights are, and “conservatives” support the constitution last I checked.

    First, to assume as you state that the Va. Supreme Court has any “liberal” judges is so laughable — it is one of the most conservative courts around. I live there. The court is so far from “liberal” it’s absurd to use that word about them.

    They do, apparently, though, realize that the Constitution protects each of us from unreasonable search and seizure, and things like a dog (who cannot be cross examined, tested for competence, etc.) “testifying” (which is what this is) as to the guilt or innocence, as interpreted by its human handler, turn the Constitution on its head.

    There is no “deductive reasoning” involved in a cop “interpreting” the “testimony” of a dog, for pete’s sake … the process of elimination was done by a DOG. How will you test that process by asking questions about what deductive reasoning process was used? You can’t!

    You can complain but next time it might be your rights, or your wife’s or daughters that go out the door.

    “Vigilante up”? — that’s room temperature IQ, knuckle-dragging nonsense used by folks who truly do not respect the Constitution they trumpet they’re so “conservative” about.

  • avatar
    Pch101

    Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Some posters on this thread would probably accuse you of being a commie for believing in such nonsense as the Fourth Amendment. Pffft.

  • avatar
    KalapanaBlack

    Mark MacInnis :
    September 24th, 2009 at 12:42 pm

    Being somewhat to the right of Atilla the Hun, I can’t voice my disagreement vehemently enough.

    One of these days, it won’t be drugs, it’ll be a weapon, which couldn’t be “legally” searched for under this ruling. Then that weapon will be used to kill an innocent bystander or a police officer.

    Liberal judges suck. The process-of-elimination is a big part of deductive reasoning used to solve crimes…..and the court invalidates it?

    Everyday, the inmates control more of the asylum.

    Time to vigilante up….

    What would constitute probable cause to search a passenger in a vehicle for a weapon? Unless it’s a bomb, I don’t think dogs are trained to sniff out pieces of metal that have been bent into guns. So even if the court had upheld this ruling in the end, that wouldn’t have made any difference in your doomsday scenario.

    Are you okay with driving through a police checkpoint everywhere you go “just to make sure” you don’t have drugs or guns or anything else that the government decides might be illegal this week? What if it’s a drug you have a prescription for, but you don’t have it on your person, and you die while they try to figure out if you’re lying or not?

  • avatar
    NeonCat93

    @ Mark MacInnis
    I don’t think drug dogs alert to firearms.

    Of course, I tend to suspect “Clever Hans” accounts for a lot of drug dog alerts. The dog wants to make the handler happy, and the handler is happiest when the dog alerts. The courts have ruled that the dog alerting is all the evidence needed for a search. If nothing is found, the relieved suspect is let go but no doubt is reflected on the dog or its handler’s objective ability for the next alert.

    @ carguy

    Amen to that. Forfeiture laws have a corrupting influence on law enforcement and the law itself. “Your property is guilty. Prove that it isn’t.”

  • avatar
    noreserve

    Mark MacInnis :
    I am a Libertarian and it’s folks like you that we are afraid of – those that know no bounds for government/police intrusion in our lives to “save” us. For $#@%* sake, this country is so backward when it comes to “drugs” that it makes me puke. Live and let live. Stay the $#@% out of my life if I’m not harming you.

    Roadblocks and shotgun searches of any type are unconstitutional. 21-year old drinking (or whatever) age is unconstitutional. People with their head in the sand and government in their ass pocket are what raise my blood pressure. I can’t believe that people actually think it’s justified to allow that much intrusion into our lives when no apparent harm is be done. And don’t get me started on the whole “terrorist” thing. I think some people would have the police monitor their dumps if they thought it would protect us all. Jesus Christ!

  • avatar
    NickR

    Well, I can still keep hoping that Andrea Penoyer
    (http://tlc.discovery.com/videos/police-women/) illegally inspects my pants.

  • avatar
    Detroit-Iron

    @ noreserve
    +1

  • avatar
    Pch101

    Roadblocks and shotgun searches of any type are unconstitutional.

    While I wish it was otherwise, roadblocks are constitutional, within limits. A poor decision by the court, in my opinion, but that’s the current case law as it stands as of today.

  • avatar
    zerofoo

    I know a couple of K9 officers, and they’ve told me the best way to search a car on suspicion is to use a dog.

    From what my police friends tell me, the dog is just a way to CYA when you want to do a search. Every handler knows how to make his dog “alert” without showing his hand to those he is searching.

    I do want police officers to do their jobs properly, but a “reasonable search and seizure” line must be drawn, and it appears that this court has done that.

    No matter how much power and authority we give to law enforcement, we can never totally prevent people from doing bad things. I’m not willing to give up my freedoms and liberties for an impossible crime-free society.

    -ted

  • avatar
    mimizhusband

    Zerofoo and GS650G said it best.

  • avatar
    Packard

    @Marc

    You’re correct – you’re somewhere to the right of Attila.

    For you, I suppose, there is no Constitution. Results count, not rights.

    Of course, what the police invade next won’t be his car, it’ll be your house.

    And, then you’ll be another Obama, complaining about the cops.

    Bottom line is that the individual freedoms define our liberty, and even those of the police.

    It’s not about catching crooks.

    It’s abut maintaining freedom.

  • avatar
    t-truck

    Why on earth are we wasting such huge amounts of money on some looser that has a problem with drugs?

    The guy is caught with two needles and a trace amount of heroin and for that we are willing to throw him in jail for years costing the taxpayer 50-100.000$. Plus he will loose a couple of years of his life and have problem finding/holding a job for the rest of his life with a felony conviction on his record.

    That amount of money could fund after school program for a heard of kids, send several students through good university on a full scholarship, get green light bulbs for city hall, you name it…

    A fine, community service and some sort of mandated drug awareness class would cost a fraction of what prison time cost and might actually give the guy a change to sober up.

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