Probable Cause is Probable Cause - Except When It Isn't

Everyone knows of my skepticism over the magically constitutional dog-sniff which isn't a search per Illinois v. Caballes. Nevertheless, now that the premise has become law, it has to be applied.

So, a car is pulled over and has four passengers. While the stop is going on a dog is run past the vehicle. The dog alerts. So, per Caballes the officers have constitutionally valid probable cause to search the contents of the vehicle. They have the people exit and search the vehicle, finding nothing. Can the officers search the people who were in the car when the dog alerted? After all, probable cause was for contraband to be in the vehicle and the people were in the vehicle; if an officer took a purse out of the car and laid it on the ground probable cause wouldn't dissipate and the search would still be valid. Thus the search of the individuals should be valid.

Except it isn't.

In Whitehead v. Commonwealth, the Virginia Supreme Court ruled that the standard for searching people is higher than probable cause. After all, probable cause was established by the dog sniff which covered the entire area of the car and Defendant was in the car at the time. Ipso facto, there is probable cause to search Defendant (if probable cause allows the officer to search a purse in the car he should be able to search the defendant). Nevertheless, the Virginia Supreme Court has decided that for a search of a person in the car the formula is: probable cause + a particularized something more.

In order to get there the Court has to stretch its reasoning across several different cases. Here are the cases it goes through:

U.S. v. Di Re, 1948, USSC: (Severely limited by Pringle) Mere presence in the car where a crime has been committed is not probable cause if one of the other persons in the car has been specifically identified as the law breaker.

Ybarra v. Illinois, 1979, USSC: When police get a search warrant for a merchant's place of business the search warrant does not extend to whichever random customers happen to be in the place of business when the warrant is served.

Maryland v. Pringle, 2003, USSC: If contraband is inside a car an officer can reasonably infer that there is probable cause that all the occupants of the car are involved in the illegal activity because of the relatively small size of the automobile.

El-Amin v. Commonwealth, 2005, Va.SCt.: There is reasonable articulable suspicion for a Terry pat down of members of a group, in the evening in a high crime area, if a member of the group is found to have a weapon.

Of all the above, Pringle seems to be the case closest to point. It's not exactly the same because in Pringle the contraband was found first and then Pringle was arrested without particularized proof that it was his. However, since Caballes has declared dogs infallible, the same probable cause as the finding of drugs in Pringle is established by the alert of the dog.¹ Thus, the defendant in Whitehead has probable cause clearly established against him, just as the defendant in Pringle did.

Whence came the Virginia Supreme Court's reasoning? Well, it's a pretty close rationale to Di Re before it was limited by Pringle. Before the limitation, it was a fair reading of Di Re to say that it stood for the idea that being in a car in the presence of contraband or illegal activity does not mean that probable cause adheres to all individuals in the car. This is almost exactly the standard adopted by the Virginia Supreme Court. However, it is not the constitutional standard post Pringle.

Ybarra & El-Amin, neither car cases, really aren't germane to much except that the Virginia Supreme Court seems to be trying to use them as ammo in its attempt to turn back the clock and claim the old standard from Di Re. They bolster the Court's attempt to characterize this case as a "companions" case rather than a "car" case. However, it's clear that constitutional jurisprudence has set different rules for those in a car than for those an open shop or walking in public. The cases just are not on point.

To be fair, the Court was dealing with a terrible decision from the Court of Appeals which basically said that there was probable cause to search Defendant because he was the last place that hadn't been searched and that he couldn't raise the search of the other occupants, even if their searches might not have been as based in probable cause as his. Either all the occupants were searched constitutionally or they were not. You can't break the constitution until you find the guilty party and then state that it wasn't unconstitutional for this guy. As well, the Court does point out that there are opinions out there from other appellate courts which do not reach the same conclusion as it has. Maybe it's trying to get the USSC's attention by pointing out a split it ought to address.

Anyway, now we have to face the practical applications of this decision. I don't know if they'll be much. Now, as one officer searches the car another officer can run the dog past the individuals who have exited the car. As long as there is no extension to the time of the detention, this second, non-search sniff should not have any constitutional implications and furnish all the particularized suspicion needed.


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¹ And before you yell at me about this, go read the article I linked to in the first sentence of this post. I do not believe this is logical per se, I am just stating that it is the USSC's logic per Caballes and we are obligated to follow it.