Today, we have another question about search and seizure, this time from an officer in the state of Virginia.
The officer asks: If a positive canine alert for drugs occurs on a vehicle, does that give you the right to search the driver and passengers for drugs?
The short answer is: Generally, it gives you the right to arrest and search the driver, but it does not automatically give you the right to arrest and search the passengers. Let’s dive into why.
The first principle to consider is that the United States Supreme Court established long ago, in 1948, that simply having probable cause that contraband is contained within a vehicle does not automatically grant the right to search passengers within that vehicle. Instead, you need a connection — a nexus — between the contraband and the passenger. Without that nexus, you don’t have probable cause.
For example, in one case, three occupants were in a vehicle. While talking with the driver, the officer noticed a large amount of cash in the glove compartment, consistent with drug trafficking. Based on other evidence, the officer had probable cause to search the vehicle. Drugs were found behind the cup holder in the rear seat, which could be accessed to reach the trunk. Although the officer arrested the passenger in the back seat for constructive possession, the court threw out the arrest. The officer failed to articulate a connection between the drugs in the trunk and the passenger. Mere presence isn’t enough unless the drugs are in plain view or under the passenger’s control.
For instance, if a passenger had drugs in their seat pocket, or if they were physically sitting on them, that would be a different case. But simply finding drugs in the trunk, without more evidence, doesn’t suffice. This also applies to dog alerts. A canine alert indicating the presence of contraband in a vehicle doesn’t automatically extend to the passengers. In one case, the dog alerted while a passenger was in the car. After removing the passenger and searching the vehicle, the officer didn’t find any drugs. When they began searching the driver and passengers, the court ruled that the officer had probable cause to arrest and search the driver, but not the passenger without articulating a nexus.
Some courts may rule that the presence of passengers in the vehicle provides sufficient probable cause, but the general rule is that you must articulate the connection between the drugs and the passengers.
Even if you have probable cause to believe a passenger possesses drugs, you can’t automatically search that person without an arrest. There is no exception to the warrant requirement based solely on probable cause, whether the person is an occupant or a pedestrian. You typically need some other legal exception to perform a search without a warrant.
In practice, however, things often play out naturally. Courts have consistently held that if you have probable cause to search someone, and the search occurs shortly before a formal arrest, the search is valid because it’s considered contemporaneous with the arrest. The key is that most courts expect you to have the intent to arrest while conducting the search. If you’re merely collecting evidence and have no intent to arrest — for example, if you’re planning to issue a citation — then there’s no exception to the warrant requirement.
In some cases, like when there’s an imminent risk of evidence destruction, you may be able to search a person’s belongings, such as a purse, without an arrest. But if you have probable cause that a meth pipe is in a person’s purse, and you don’t intend to arrest them, you can’t just reach in and seize the evidence. You must articulate exigent circumstances, such as the risk of evidence being destroyed.
One possible approach is to give the person an ultimatum. For example, you might tell the person, “I have probable cause, and I will arrest you if necessary. But if you let me seize the evidence, I will issue a citation and let you go.” This is not coercion; it’s a legal fact and is perfectly lawful.
Another important consideration involves searching a passenger’s belongings, such as a purse or backpack. If you have probable cause to search a vehicle, you may also search containers within it that could contain contraband. For instance, if you’re looking for drugs and search a passenger’s purse, that search is lawful because the purse could contain the contraband. However, if the passenger leaves with the purse, and it’s no longer in the vehicle, the courts may no longer consider it part of the vehicle for search purposes. If the purse is intimately associated with the person, you no longer have the right to search it based on the canine alert alone.
For example, if a male driver exits the vehicle and you want to search his wallet for drugs, you can’t just search it without an arrest. Some courts treat a purse as similar to a wallet in this context because it’s intimately associated with the person.
I hope this explanation clarifies the issue. It’s a nuanced topic, and while there’s no easy answer, the key is to always articulate the connection between the contraband and the passengers. As for the driver, they are often considered the “captain of the ship” and presumed to have knowledge and control over the contraband found in the vehicle.
I have a book, The Search and Seizure Survival Guide, which breaks down constitutional doctrines for police officers. It was written specifically for you. If you’d like me to come to your agency to train you and your fellow officers on advanced search and seizure topics, contact us for more information.
Thank you, and stay safe.
