Virginia: Supreme Court Restricts Search of Car Passengers

The Newspaper
by The Newspaper
virginia supreme court restricts search of car passengers

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.

Whitehead v. Virginia (Supreme Court of Virginia, 9/18/2009)

Join the conversation
2 of 19 comments
  • Packard Packard on Sep 24, 2009

    @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.

  • T-truck T-truck on Sep 25, 2009

    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.

  • Alan I would think Ford would beef up the drive line considering the torque increase, horse power isn't a factor here. I looked at a Harrop supercharger for my vehicle. Harrop offered two stages of performance. The first was a paltry 100hp to the wheels (12 000AUD)and the second was 250hp to the wheels ($20 000 (engine didn't rev harder so torque was significantly increased)). The Stage One had no drive line changes, but the Stage Two had drive line modifications. My vehicle weighs roughly the same as a full size pickup and the 400'ish hp I have is sufficient, I had little use for another 100 let alone 250hp. I couldn't see much difference in the actual supercharger setup other than a ratio change for the drive of the supercharger, so that extra $8 000 went into the drive line.
  • ToolGuy Question: F-150 FP700 ( Bronze or Black) supercharger kit is legal in 50 states, while the Mustang supercharger kit is banned in California -- why??
  • ToolGuy Last picture: Labeling the accelerator as "play" and the brake pedal as "pause" might be cute, but it feels wrong. It feels wrong because it is wrong, and it is wrong because Calculus.Sidebar: I have some in-laws who engage the accelerator and brake on a binary on/off all-in basis. So annoying as a passenger.Drive smoothly out there. 🙂
  • Johnny ringo It's an interesting vehicle, I'd like to see VW offer the two row Buzz in the states also.
  • Chuck Norton And guys are having wide spread issues with the 10 speed transmission with the HP numbers out of the factory......