IN THE SUPREME COURT OF IOWA
No. 20–1393
Submitted December 15, 2021—Filed February 18, 2022
STATE OF IOWA,
Appellee,
vs.
YALE STEVENS,
Appellant.
Appeal from the Iowa District Court for Woodbury County, John C. Nelson,
Judge.
A defendant appeals his conviction for possession of methamphetamine
on the basis that officers lacked probable cause to search his person after a drug
dog alerted on the vehicle in which he had been a passenger. REVERSED AND
REMANDED.
Oxley, J., delivered the opinion of the court, in which all justices joined.
Martha J. Lucey, State Appellate Defender, Melinda J. Nye (argued),
Assistant Appellate Defender, and Sonia E. Elossais (until withdrawal), law
student, for appellant. 2
Thomas J. Miller, Attorney General, and Sharon K. Hall (argued), Assistant
Attorney General, for appellee. 3
OXLEY, Justice.
Yale Stevens was convicted of possessing methamphetamine following his
arrest when his brother was pulled over for a traffic violation. Stevens contends
that the district court should have suppressed evidence of the
methamphetamine found in his coat pocket during the traffic stop, arguing that
the officer lacked probable cause to search him after a canine indicated drugs
were present in the car where he had been a backseat passenger. A drug dog’s
positive alert outside the driver’s door of a vehicle does not alone create probable
cause to search the vehicle’s passengers, and the officers here lacked probable
cause particularized to Stevens needed to search his person without a warrant.
We reverse the denial of his motion to suppress and remand for further
proceedings.
I.
On our de novo review, we find the facts are as follows. Sergeant Brian
Clausen followed an Audi he observed leaving a suspected drug house on
February 26, 2020, between 12:00 a.m. and 1:00 a.m. While following the
vehicle, he noticed a middle brake light was out and called a uniformed police
officer to perform a traffic stop. Officer Thompson received the call and pulled
over the Audi. Officer Thompson also requested assistance from K-9 officer
Michael Simons based on Sergeant Clausen’s report that the vehicle left a
suspected drug house.
There were two people in the car. Yale Stevens, the defendant, was in the
rear passenger-side seat, and his brother Kyle Stevens was driving. Officer 4
Thompson explained the purpose for the stop and requested identification from
both men. While Officer Thompson waited for his computer system to provide
the status of Kyle’s driver’s license, Sergeant Clausen ordered Yale to exit the
vehicle so the drug dog, Aura, could sniff the outside of the car. With Yale’s
consent, Clausen patted him down for weapons and felt only cigarettes, car keys,
and what Yale identified as ChapStick. Meanwhile, Officer Thompson learned
that Kyle did not have a valid license and returned to the car. He ordered Kyle
out of the vehicle and ultimately arrested him.
Once Yale and Kyle were away from the car, Officer Simons walked Aura
around the vehicle. Aura is a “passive” drug dog, which means she indicates the
presence of a controlled substance by sitting. Officer Simons, who had been
Aura’s handler for over a year, explained that “there’s no in between with this
dog,” she “either sits or doesn’t sit.” “[I]t’s real plain” and “obvious”—her “tail
stops wagging” and she “sits and stares at where the odor is coming from.”
Aura jumped up on the driver’s door where the window was open and sat
after sniffing inside. Officer Simons then opened the driver’s door to allow her in
the car. Aura entered and exited the car twice. While inside the car, Aura was
most interested in the passenger’s side in both the front and back seat, but as
Officer Simons testified, it is difficult for a passive dog to alert by sitting when
inside of a vehicle. After exiting the vehicle the second time, Aura sat outside the
driver’s side of the empty car. Officer Simons testified he was concerned with the
passenger side based on Aura’s actions inside the vehicle, so he told Sergeant
Clausen to “get in his pockets,” meaning to search Yale. 5
Sergeant Clausen asked Yale if he knew why the dog would alert on the
car, and Yale responded he did not. Clausen then asked if Yale had anything
illegal on him, and Yale looked at him without responding. Clausen told Yale he
was going to search his person. Yale put both his hands in his coat pockets, and
Clausen told him to take them out. Clausen again asked Yale if he had anything
illegal, and Yale mumbled something unintelligible and reached toward his right
coat pocket. Clausen stopped him and reached inside Yale’s pocket himself,
pulling out a bag containing a crystal-like substance that later field-tested
positive for 0.51g of methamphetamine. Officer Thompson subsequently found
a similar user quantity of drugs in Kyle’s pocket during a search incident to his
arrest for driving without a license. Yale told the officers he and his brother had
each purchased $30 worth of methamphetamine but refused to say more. Officer
Simons later searched the car by hand and did not find any drugs.
After his arrest, Yale Stevens filed a motion to suppress the evidence
recovered from his pocket, arguing that the canine’s alert on the vehicle did not
provide probable cause to search his person. Following an evidentiary hearing,
the district court denied his motion to suppress. The court concluded the totality
of the circumstances established probable cause because the car was leaving a
known drug house, the canine signaled on the passenger side of the vehicle, and
Stevens mumbled when questioned.
The district court proceeded to a trial on the minutes of testimony,
attached reports, and the dashcam video recording from the stop. The court
found Stevens guilty of possession of methamphetamine, in violation of Iowa 6
Code section 124.401(5) (2020). Stevens appealed his conviction, arguing the
district court erred in denying his motion to suppress.1 We retained the appeal.
II.
We review claims challenging the denial of a motion to suppress evidence
on constitutional grounds de novo. State v. Dewitt, 811 N.W.2d 460, 467 (Iowa
2012). When presented with such claims, we make an “independent evaluation
of the totality of the circumstances as shown by the entire record.” State v.
Scheffert, 910 N.W.2d 577, 581 (Iowa 2018) (quoting State v. Tague, 676 N.W.2d
197, 201 (Iowa 2004)). “We give deference to the district court’s factual findings,
but they do not bind us.” Id.
A.
Stevens argues that Sergeant Clausen’s search of his person violated his
constitutional rights under both the Fourth Amendment to the United States
Constitution and article I, section 8 of the Iowa Constitution to be free from
“unreasonable searches and seizures.” We decide today’s case under the federal
constitution. Although Stevens cited both the Iowa and federal constitutions
below, he did not argue for more protection or adoption of a different standard
under the Iowa Constitution. See State v. Effler, 769 N.W.2d 880, 895 (Iowa
2009) (Appel, J., specially concurring) (“[B]ecause of our prudential concern that
the issue may not be fully illuminated without a developed record and briefing,
1Stevens also appealed the sufficiency of the evidence that he knowingly possessed a controlled substance, challenging the State’s reliance on field-tests to prove beyond a reasonable doubt that the substance was methamphetamine. Because we reverse the district court’s denial of Stevens’ motion to suppress the substance found in his coat pocket, we do not address the reliability of the field-testing. 7
we generally decline to consider an independent state constitutional standard
based upon a mere citation to the applicable state constitutional provision.”).
Further, because we find there was a Fourth Amendment violation, it is
unnecessary for us to separately decide this case under the Iowa Constitution.
We have said that warrantless searches of a person by a police officer are
per se unreasonable, and therefore unconstitutional, unless the search falls
under one of the “few carefully drawn exceptions”: “consent, plain view, probable
cause coupled with exigent circumstances, searches incident to arrest, and those
based on the emergency aid exception.” State v. Lewis, 675 N.W.2d 516, 522
(Iowa 2004); see also Arizona v. Gant, 556 U.S. 332, 338 (2009). Both parties
address the warrantless search here under the automobile exception, which
requires probable cause and exigent circumstances. We reject this analysis
because the automobile exception does not authorize an officer to conduct a
warrantless search of a person.
The automobile exception allows officers to search a vehicle without a
warrant if the officers have probable cause to believe the vehicle contains
contraband. See State v. Storm, 898 N.W.2d 140, 145–46 (Iowa 2017). The
“exception rests on twin rationales: (1) the inherent mobility of the vehicle, and
(2) the lower expectation of privacy in vehicles compared to homes and other
structures.” Id. at 145. Generally, a positive alert from a reliable drug dog
establishes probable cause to search a vehicle, including containers capable of
concealing contraband. State v. Bergmann, 633 N.W.2d 328, 338 (Iowa 2001)
(“Several cases have concluded that a reliable drug dog alert alone is enough to 8
establish probable cause to search.”). Stevens relies on cases holding that a dog
alert on a vehicle does not provide probable cause to search a container that was
not in the vehicle at the time the dog alerted, see State v. Lelm, 962 N.W.2d 419,
423 (N.D. 2021) (holding that probable cause established by canine’s indication
on a vehicle limited search for potential illegal contraband to containers within
the vehicle at the time the sniff was conducted), reasoning that if probable cause
is lacking to search a container not in the vehicle, it is also lacking to search a
person who was outside the vehicle at the time of the drug sniff.
In State v. Rincon, also filed today, we held that officers properly searched
a passenger’s backpack that had been removed from a vehicle after the officers
observed open containers of alcohol inside the vehicle. ___ N.W.2d ___, ___ (Iowa
2022). Probable cause to search the vehicle under the automobile exception for
evidence of other open containers, including a search of any containers in the
vehicle that could hold an open container of alcohol, had been established while
the backpack was inside the vehicle, and we held that the passenger could not
frustrate law enforcement’s lawful search by removing the backpack from the
vehicle. Id. at ___ (distinguishing State v. Lelm on the basis that the passenger’s
backpack in that case was not in the vehicle when the drug dog alerted, so the
probable cause from the dog alert did not extend to the backpack). Arguably, an
extension of our Rincon holding supports Stevens’s position. But Rincon involved
search of a backpack, not search of a person. This distinction is important in
search and seizure jurisprudence, cf. 2 Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment § 3.1(b) (6th ed. 2020) (“This distinction 9
[between probable cause to search a place and probable cause to arrest an
individual] is a critical one, and . . . there may be probable cause to search
without probable cause to arrest, and vice-versa.”), and we must consider that
distinction in determining whether the officers satisfied constitutional standards
when they searched Stevens’s person.
“It has long been the law that probable cause to search a car does not
justify the search of a passenger.” State v. Horton, 625 N.W.2d 362, 365 (Iowa
2001) (en banc) (citing United States v. Di Re, 332 U.S. 581, 584–87 (1948))
(emphasis in original). In Wyoming v. Houghton, in holding that probable cause
to search a vehicle for contraband extended to searching a passenger’s bag that
might contain the contraband, Justice Scalia distinguished between the
diminished privacy associated with a passenger’s belongings found in a vehicle
and “the unique, significantly heightened protection afforded against searches of
one’s person.” 526 U.S. 295, 303 (1999) (distinguishing Di Re, 332 U.S. 581, and
Ybarra v. Illinois, 444 U.S. 85 (1979)); see also id. at 307–08 (Breyer, J.,
concurring) (writing separately to highlight that the bright-line rule for the
automobile exception applied by the majority extended only to the search of the
automobile and its containers, not to the search of a person found in the vehicle).
Other courts have made the same distinction. See, e.g., State v. Gibson, 108 P.3d
424, 429 (Idaho Ct. App. 2005) (“[P]ersonal searches of vehicle occupants are not
authorized under the automobile exception as a result of the occupant’s mere
presence within a vehicle, which there is probable cause to search.”); State v.
Harris, 280 S.W.3d 832, 843 (Tenn. Crim. App. 2008) (“We know of no broad 10
application of the vehicle search exception to the warrant requirement, however,
that underwrites the search of a person who occupied the vehicle prior to the dog
sniff.”). As one court has explained:
Probable cause to believe that a person is carrying evidence does not justify a warrantless search of the person any more than probable cause to believe a home contains evidence justifies a warrantless search of a home. Only places or things enjoying a lesser expectation of privacy, such as automobiles, are vulnerable to probable-cause- based warrantless searches for the purpose of discovering and seizing evidence of crime.
Wallace v. State, 791 A.2d 968, 974 (Md. Ct. Spec. App. 2002) (quoting State v.
Funkhouser, 782 A.2d 387, 404 (Md. Ct. Spec. App. 2001)), aff’d 812 A.2d 291
(Md. 2002).
Aura’s alert on the driver’s side of the vehicle may have given the officers
probable cause to search the vehicle given its inherent mobility and its
occupants’ diminished expectation of privacy in its contents. But the justification
for searching the vehicle did not allow Sergeant Clausen to also search Stevens’s
person under the automobile exception.
Although probable cause that a vehicle contains contraband does not
justify a warrantless search of a person under the automobile exception,
probable cause that a person is committing a crime does allow an officer to arrest
the person. See Horton, 625 N.W.2d at 364 (“Probable cause [to arrest] exists
when the facts and circumstances within the arresting officer’s knowledge would
warrant a person of reasonable caution to believe that an offense is being
committed.” (quoting State v. Ceron, 573 N.W.2d 587, 592 (Iowa 1997))). And
then the officer can conduct a warrantless search incident to a lawful arrest. Id. 11
at 364–65. Under a search incident to arrest, an officer can (1) disarm the
suspect to take him into custody, and (2) preserve evidence. United States v.
Robinson, 414 U.S. 218, 234 (1973). Even though a search incident to arrest
typically occurs after an arrest, “the timing of the formal arrest is not fatal to the
search.” Horton, 625 N.W.2d at 364; see also Rawlings v. Kentucky, 448 U.S. 98,
111 (1980) (“Where the formal arrest followed quickly on the heels of the
challenged search of petitioner’s person, we do not believe it particularly
important that the search preceded the arrest rather than vice versa.”). The
search can precede a “formal arrest if it is substantially contemporaneous with
it, provided probable cause for the arrest existed at the time of the search.” State
v. Peterson, 515 N.W.2d 23, 25 (Iowa 1994) (emphasis added).
While the search of a vehicle or a container under the automobile exception
and the search of a person incident to a warrantless arrest both ultimately turn
on a finding of probable cause, the focus of the probable cause determination
differs. See Gibson, 108 P.3d at 430 (“The standard of probable cause involves
the same quantum of evidence regardless of whether an arrest or a search is
involved,” but “the facts needed to justify a search are different from those
needed to justify a seizure.”). Probable cause to search under the automobile
exception “exists where in view of the ‘totality of the circumstances,’ ‘there is a
fair probability that contraband or evidence of a crime will be found in a
particular place.’ ” Butler v. United States, 102 A.3d 736, 740–41 (D.C. 2014)
(quoting United States v. Gilliam, 167 F.3d 628, 633 (D.C. Cir. 1999)).
“Contrastingly, the inquiry for probable cause to arrest is whether the facts and 12
circumstances within a law enforcement officer’s knowledge are sufficient to
warrant a prudent [police officer] in believing that [the suspects] had committed
or [were] committing an offense.” Id. at 741 (alterations and emphasis in
original). So the parties’ arguments about probable cause have relevance to the
analysis, but examining probable cause under the proper framework—probable
cause to support a warrantless arrest—keeps the focus on the person to be
arrested, not the place to be searched. Thus, we must determine whether
Sergeant Clausen had probable cause to arrest Stevens immediately before he
searched Stevens’s person by reaching into his pocket.
B.
The standard for finding probable cause is not subject to a precise
definition because whether it exists depends on the specific facts of each case.
See Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“The probable-cause standard
is incapable of precise definition or quantification into percentages because it
deals with probabilities and depends on the totality of the circumstances.”);
Illinois v. Gates, 462 U.S. 213, 232 (1983) (“[P]robable cause is a fluid concept—
turning on the assessment of probabilities in particular factual contexts—not
readily, or even usefully, reduced to a neat set of legal rules.”); State v. Freeman,
297 N.W.2d 363, 365 (Iowa 1980) (focusing on the “probabilities based on
practical considerations, not on legal technicalities” in reviewing for probable
cause). However defined, “ ‘[t]he substance of all the definitions’ of probable
cause ‘is a reasonable ground for belief of guilt.’ ” Brinegar v. United States, 338
U.S. 160, 175 (1949) (quoting McCarthy v. De Armit, 1 Pennyp. 297, 1881 WL 13
13865, at *6 (Pa. 1881)). The probable cause requirement “seek[s] to safeguard
citizens from rash and unreasonable interferences with privacy and from
unfounded charges of crime,” while also allowing “fair leeway” to officers in
protecting the community. Id. at 176. A higher requirement could “unduly
hamper law enforcement,” but a lesser one would “leave law-abiding citizens at
the mercy of the officers’ whim or caprice.” Id.
In assessing probable cause to make a warrantless arrest, the grounds for
the reasonable “belief of guilt must be particularized with respect to the person
to be searched or seized.” Pringle, 540 U.S. at 371; see also Ybarra, 444 U.S. at
91 (“[A] search or seizure of a person must be supported by probable cause
particularized with respect to that person.”). Due to this particularization
requirement, probable cause to search a car does not justify the search of a
passenger without something more to create a reasonable belief of wrongdoing
specific to the passenger. Pringle, 540 U.S. at 373. In Maryland v. Pringle, the
United States Supreme Court upheld a finding of probable cause to search a
vehicle’s three passengers after the police found five glassine bags of cocaine
hidden behind the backseat armrest and $763 of rolled-up cash in the glovebox.
Id. at 368. The amount of cash and quantity of drugs indicated drug dealing,
making it more likely that the occupants were part of a common enterprise,
which provided probable cause to arrest them all when none claimed ownership.
Id. at 372–73. On the other hand, where officers caught an informant with
counterfeit gas ration coupons in the backseat of a vehicle, they had probable
cause to arrest the person sitting in the driver’s seat based on the informant’s 14
statement he purchased the counterfeit coupons from the driver but lacked
probable cause to arrest the front seat passenger where the officers had no
information implicating him in the benign transaction. Di Re, 332 U.S. at 587,
592–93 (“We are not convinced that a person, by mere presence in a suspected
car, loses immunities from search of his person to which he would otherwise be
entitled.”).
We likewise require probable cause specific to the individual to support
the warrantless arrest of a passenger of an automobile. Horton, 625 N.W.2d at
365. In State v. Horton, the defendant was a passenger in a vehicle that an officer
stopped due to a license plate violation. Id. at 363. After seeing marijuana butts
in the vehicle’s ashtray, an officer searched the passenger and discovered
marijuana in her pocket. Id. Focusing on whether the officer had probable cause
to make an arrest prior to discovering marijuana in the passenger’s pocket, we
concluded that “[t]he officers in Horton’s case could have reasonably believed the
marijuana had been smoked by Horton, her companion, both, or perhaps
neither.” Id. at 367. Proximity to marijuana butts would not have been sufficient
to convict the defendant, but it was enough to convince a reasonable person that
a crime had been committed —thereby creating probable cause to search the
people who may have committed it. Id.; see also State v. Merrill, 538 N.W.2d 300,
302 (Iowa 1995) (per curiam) (holding officer had probable cause to search
passenger’s hand where officer smelled burnt marijuana as passenger stepped
out of car and passenger made furtive attempts to hide something in his hand).
Although Pringle, Di Re, and Horton are not dog-sniff cases, they inform our 15
analysis because they confirm that officers must have particularized suspicion
sufficient to arrest a passenger before searching them.
C.
The State nonetheless urges us to conclude that Aura’s alert on any part
of the vehicle provided the probable cause needed to search any passengers,
including Stevens. We have not before addressed this specific issue. But courts
in other jurisdictions have, with some resulting disagreement. The majority view
appears to be that probable cause to search a vehicle based on a drug dog’s alert
does not extend to searching the passenger without “something more sufficiently
particularized” to the individual. See Whitehead v. Commonwealth, 683 S.E.2d
299, 305 (Va. 2009) (“After the positive alert by the trained narcotics detection
dog, Officer Quigley unquestionably had probable cause to search the vehicle.
However, without something more, the positive alert did not provide probable
cause sufficiently particularized as to Whitehead [the passenger] to allow the
search of his person.” (citation omitted)); see also United States v. Williams,
650 F. Supp. 2d 633, 673 (W.D. Ky. 2009) (“[W]hile [the automobile exception]
may justify a search of the car’s interior and the personal possessions of its
occupants found therein, it will not alone justify the warrantless search of the
vehicle’s occupants themselves.” (citing Houghton, 526 U.S. at 303 & n.1)); Cady
v. State, 817 So. 2d 948, 949 (Fla. Dist. Ct. App. 2002) (finding that dog’s alert
to the passenger seat after the defendant had exited the vehicle did not give the
police probable cause to believe the defendant had drugs on his person); Gibson,
108 P.3d at 432 (“The dog’s detection of the odor of drugs did not automatically 16
justify probable cause to arrest Gibson unless there were additional factors to
connect that odor with him.”); People v. Fondia, 740 N.E.2d 839, 841 (Ill. App.
Ct. 2000) (agreeing in a pre-Pringle case with the defendant’s argument “that a
police canine alert of a car’s exterior indicating the presence of a controlled
substance within the car does not, without more, provide the police with
probable cause to search the persons of the car’s occupants”); State v. Anderson,
136 P.3d 406, 415 (Kan. 2006) (“Although this court has held that a drug dog’s
alert is sufficient to constitute probable cause to search a vehicle, we do not
agree with the [United States v.] Anchondo [,156 F.3d 1043, 1045
(10th Cir. 1998),] panel’s decision that such an alert followed by an unsuccessful
search of the vehicle gives law enforcement license to search or arrest the
vehicle’s driver.” (citation omitted)); State v. Smith, 729 S.E.2d 120, 126 (N.C. Ct.
App. 2012) (“The fact that defendant was formerly a passenger in a motor vehicle
as to which a drug dog alerted, and a subsequent search of the vehicle found no
contraband, is not sufficient, without probable cause more particularized to
defendant, to conduct a warrantless search of defendant’s person.”); State v.
Kelly, No. 2000–P–0113, 2001 WL 1561543, at *3 (Ohio Ct. App. Dec. 7, 2001)
(holding canine alert on vehicle supported search of interior of car but not search
of any of its occupants where dog did not indicate on any of the occupants).
These cases recognize that a drug dog’s positive indication that drugs may be
present in a car by itself is insufficient to support probable cause to arrest a
passenger of the car without a reasonable belief of wrongdoing particularized to
the passenger. 17
The State points us to three cases where courts have stated that a dog
alert on a car provides probable cause to search an occupant of the car. See
United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir. 1994); State v.
Griffin, 949 So. 2d 309, 314 (Fla. Dist. Ct. App. 2007); State v. Ofori, 906 A.2d
1089, 1099 (Md. Ct. Spec. App. 2006). Having considered the cases, we disagree
with their reasoning and decline to follow them.
In United States v. Klinginsmith, a dog alerted on the trunk of a vehicle
after the driver and passenger consented to a search of the vehicle. 25 F.3d at
1509. The driver produced a key for the trunk, where officers discovered eighty
kilograms of marijuana. Id. at 1509, 1511. The United States Court of Appeals
for the Tenth Circuit concluded that “when the dog ‘alerted,’ there was probable
cause to arrest Magee [the driver] and Klinginsmith [the passenger] and to search
the vehicle without a warrant under the automobile exception even had there
been no prior consent.” Id. at 1510. The court did not elaborate on how the dog
alert provided probable cause to arrest both occupants, only citing United States
v. Stone, 866 F.2d 359, 364 (10th Cir. 1989), to support its conclusion that it
did. See id. But Stone merely held that officers did not conduct an impermissible
search of the defendant’s vehicle when a drug dog jumped into the hatchback
and alerted on a duffle bag. 866 F.2d at 364. Stone addressed the admissibility
of the drugs seized from the duffle bag, not whether the dog alert created
probable cause to arrest or search the vehicle’s passengers. Id. at 362–64. The
Tenth Circuit’s conclusory holding expressly relies on the automobile exception,
which, as discussed above, does not provide probable cause to search an 18
occupant of the vehicle without a warrant. To the extent the Tenth Circuit
believes it does, we simply disagree.
Nor are we persuaded by the reasoning of the two state cases. State v.
Ofori, which read Pringle as “absolutely dispositive,” concluded that “[b]ecause of
the close association between contraband in a vehicle and the driver of (or other
passenger in) the vehicle, either finding the drugs in the vehicle, as in Pringle, or
probable cause to believe that they are in the vehicle, as in this case, necessarily
implicates the driver and passengers.” 906 A.2d at 1099–1100. We do not read
Pringle to broadly conclude that there is a close association between every
passenger of a vehicle and any amount of drugs found in the vehicle. The Ofori
court supported its “close association” conclusion with cases involving dog alerts
on luggage to extrapolate to dog alerts on vehicles, see id. at 230–32 (discussing
Florida v. Royer, 460 U.S. 491 (1983); Ricks v. State, 586 A.2d 740 (Md. 1991);
United States v. Williams, 726 F.2d 661, 663 (10th Cir. 1984); United States v.
Waltzer, 682 F.2d 370 (2d Cir. 1982)), an extrapolation we reject given the much
closer nexus between the owner of luggage and the contents of that luggage. See,
e.g., Ricks, 586 A.2d at 742 (recognizing the defendant “conceded that he was
lawfully arrested, at least at the point when the dog scratched his bag, indicating
that it contained narcotics” and addressing separate argument as to whether
officers needed a search warrant to open the luggage). Ofori ignores the Supreme
Court’s express requirement that any “belief of guilt must be particularized with
respect to the person to be searched or seized.” Pringle, 540 U.S. at 371. 19
We are likewise unconvinced by the Florida District Court of Appeals
opinion in State v. Griffin, 949 So. 2d 309, which does not even represent the law
in Florida. The majority explained that had it been writing on a clean slate it
would have concluded that “[w]hen the dog alerted, there was probable cause
that contraband was in the car; once the car was cleared, by the process of
elimination, probable cause then existed to search Appellee [the lone occupant].”
Id. at 314. But that was not its holding. Rather, it affirmed the district court’s
suppression of the evidence based on controlling Florida precedent, which
consistently held that a dog alert on a vehicle only supports searching the
vehicle, not the passengers, even a lone driver. Id. at 310 (affirming as bound by
Williams v. State, 911 So. 2d 861, 861 (Fla. Dist. Ct. App. 2005) (per curiam)).
The Griffin majority sought certification of the case to the Florida Supreme Court,
reasoning that Pringle supported overruling the Williams line of cases, citing Ofori
and Klinginsmith in support. Id. at 311–14.
Judge Padovano, concurring in the majority’s judgment affirming
suppression of the evidence, explained:
The fallacy in the majority opinion is that it conflates the justification for searching a place with the justification for searching a person. It has never been the law that a police officer may search a person merely because that person is located in a place the officer is otherwise authorized to search.
Id. at 316 (Padovano, J., concurring in the result only) (discussing Ybarra, 444
U.S. at 91). He also distinguished Pringle, involving actual drugs found in a
vehicle, from a case involving only a dog alert on a vehicle, explaining:
[W]e cannot afford to confuse the justification for searching a vehicle with the justification for searching a person in the vehicle. If police 20
officers have a lawful basis to search a vehicle for drugs and actually find drugs in the vehicle, then they have the right to search the occupants. But to hold that police officers have a right to search the occupants of a vehicle merely because there is a possibility that drugs are located in the vehicle would push the limit of law enforcement authority well beyond that recognized in Pringle.
Id. at 318. The Florida Supreme Court denied review, apparently agreeing, as do
we, with Judge Provado’s more compelling view. See State v. Griffin, 958 So. 2d
920 (Fla. 2007) (unpublished table decision).
The State’s position essentially extends the automobile exception to
searches of persons, a concept we reject for the reasons already discussed. We
join the majority view and hold that a drug alert on some part of a vehicle does
not, in and of itself, provide probable cause to arrest a passenger of a vehicle.
There must be “something more” to provide a reasonable belief of guilt
particularized to a person before he is arrested or searched. See Whitehead, 683
S.E.2d at 305.
D.
The district court did not rely only on the dog alert, and we now consider
the totality of the circumstances to determine whether the officers had probable
cause specific to Stevens to support an arrest when Sergeant Clausen reached
into his pocket. See Pringle, 540 U.S. at 371; Scheffert, 910 N.W.2d at 581. The
State relied on three facts to support probable cause: Officer Thompson observed
the car leaving a suspected drug house, Aura’s alert on the vehicle, and Stevens’s
mumbling when asked if he possessed anything illegal.
The district court found this to be a close case, concluding the “K9
signaling on the passenger side and passenger rear of the vehicle” was the most 21
significant fact. But the district court made a factual error in finding that “Aura
not only signaled on the passenger side of the car when she was outside of the
Quattro, but once she was allowed into the car she signaled on the rear seat of
the vehicle on the passenger rear side seat.” Contrary to the court’s findings,
Aura did not signal at all on the outside passenger side of the car. Officer Simons
testified only that the dog alerted at the driver’s door. From our review, the
dashcam video does not show Aura alerting on the outside passenger side of the
car. She jumped up on that side of the car, but she never even attempted to sit,
i.e., alert, on the passenger side. At oral argument, the State agreed the district
court was simply wrong in finding Aura alerted on the outside passenger side of
the car.
With respect to the district court’s finding that Aura “signaled on the
passenger rear side seat” inside the car, Officer Simons’s testimony made clear
that the dog was interested in the passenger’s side when inside the vehicle, but
she did not actually signal there—it would have been hard for her to sit inside
the car. Although Officer Simons testified he was concerned about the passenger
side because of her interest there, a drug dog’s interest alone is not enough to
support probable cause that drugs are present. See United States v. Guzman, 75
F.3d 1090, 1096 (6th Cir. 1996) (“[W]e acknowledge that the dog’s ‘interest’ in
the bag alone would not constitute probable cause.”); United States v. Jacobs,
986 F.2d 1231, 1235 (8th Cir. 1993) (holding that a warrant application that
said a drug dog merely showed “interest” in a package would not support
probable cause). This is especially true given Officer Simons’s testimony that 22
Aura was an all-in type of dog—she either alerted or she didn’t. On our review of
the evidence, Aura indicated only at the driver’s door of the car.
So the facts we must consider include that Officer Thompson observed the
vehicle leave what he described as a known or suspected drug house, Aura was
interested in the inside passenger side of the car but only alerted at the driver’s
door of an empty vehicle, and Stevens mumbled when Sergeant Clausen asked
him if he had anything illegal after Aura alerted at the driver’s door. In
considering the totality of circumstances, we also find relevant that Sargent
Clausen patted down Stevens for weapons when he first removed him from the
car and did not discover any contraband. See People v. Lee, 828 N.E.2d 237, 246
(Ill. 2005) (holding officers lacked probable cause to arrest defendant for drug
loitering where officers merely observed defendant standing on known drug
corner and “the Terry protective pat-down search did not reveal any weapons or
drugs”).
The district court noted that the “known drug house” fact taken alone was
“not compelling or persuasive at all” considering the lack of evidence as to how
or why it had become a “known” drug house. We agree with the district court
that absent some evidence explaining why Sergeant Clausen believed the house
to be a drug house, his unadorned statement adds little, if anything, to the
probable cause analysis. In State v. Hillery, the officer knew the defendant had
prior drug convictions and saw him engage in a “three-minute encounter with a
suspected drug dealer at a house connected to a recent drug overdose.” 956
N.W.2d 492, 501 (Iowa 2021). These details supported the officer’s claim that the 23
house was a known drug house. But no such evidence was presented in this
case to support the officer’s conclusory assertion. We agree with the district court
that Sergeant Clausen’s observation about the vehicle’s location does not
support probable cause to believe Stevens was engaged in illegal activity.
With respect to Stevens’s behavior before the search, the district court’s
description is incomplete. In its order denying the motion to suppress, the court
described the suspicious events creating probable cause as:
He mumbled something inarticulable, and then reached for his pockets. The content of what was “mumbled” by the Defendant cannot be damning because it is unknown, but a reasonable person could be validly suspicious that the lack of a clear denial signified guilt.
This description leaves out important parts of the questioning. According to
Clausen’s testimony:
I first asked Mr. Stevens why the dog would indicate for an illegal substance on the vehicle, and he stated he did not know why. I asked him if he had anything illegal on him, and he just kind of looked at me. I advised him at that point that I was going to search his person. That’s when he started to mumble about having something in his pocket, but he never did tell me what it was and reached towards his coat pocket.
The district court’s ruling omitted that Stevens did in fact deny knowing why a
dog would indicate that an illegal substance was in the vehicle. In any event, the
district court improperly considered Stevens’s silence as an indication of guilt.
The lack of a “clear denial” does not support probable cause of illegal activity.
See Di Re, 332 U.S. at 594–95 (“An inference of probable cause from a failure to
engage in discussion of the merits of the charge with arresting officers is
unwarranted. Probable cause cannot be found from submissiveness, and the 24
presumption of innocence is not lost or impaired by neglect to argue with a
policeman.”).
Considering the totality of the circumstances, the most that can be said is
that a drug dog showed interest in the passenger side but only alerted at the
driver’s door of the vehicle in which Stevens had been sitting on the passenger
side and Stevens denied knowing why the dog would alert on the vehicle,
mumbling something unintelligible when asked if he had anything illegal on his
person. No facts link the dog’s alert to Stevens, and the remaining facts do not
provide probable cause that he was engaged in illegal activity to support
arresting him. See Gibson, 108 P.3d at 432 (“Unlike [other cases] where the police
possessed additional information such as the defendant’s evasive conduct,
presence in a high crime area or suspected involvement in drug trafficking, here
there is no evidence that the officers possessed additional facts that connected
Gibson to illicit drugs.”); cf. United States v. Haggard, 368 F.3d 1020, 1024 (8th
Cir. 2004) (holding that an officer had probable cause to arrest when the officer
knew about the passenger’s suspected drug trafficking, a drug dog alerted on the
car, the passenger admitted that he recently smoked marijuana, and the officer
discovered cocaine residue in a location accessible to the defendant); Jacobs, 986
F.2d at 1235 (holding that information about a suspicious package being
shipped, coupled with the fact that a drug dog showed interest but did not alert
on the package, “might have provided reasonable suspicion that it contained
contraband” but failed to provide the probable cause “needed to overcome the
defendant’s Fourth Amendment right to privacy in its contents”). 25
This case is analogous to Di Re, where “[t]he decisive evidence [the
methamphetamine in Stevens’s pocket] was that obtained by search of his
person, after he was arrested without a warrant of any kind.” 332 U.S. at 582
(emphasis added). That evidence came too late. The officers lacked probable
cause to arrest Stevens before they searched his person, and the district court
erred in denying his motion to suppress the evidence found from the
unconstitutional search.
III.
We reverse the district court’s denial of Stevens’s motion to suppress,
vacate his conviction, and remand the case for additional proceedings.
REVERSED AND REMANDED.