In a ruling that may leave a legal gap in police drug searches, the state's second-highest court said yesterday that police cannot frisk passengers for drugs based on a police dog's detecting the smell of drugs in the car in which they are riding.
Defense lawyers said the unanimous ruling by a three-judge panel of the Court of Special Appeals offers some protection for passengers who otherwise would be subject to body searches.
Gary E. Bair, chief of criminal appeals for the state attorney general's office, said it also might mean that under many circumstances, police couldn't touch a passenger holding drugs for others in a car.
Bair said his office will challenge the ruling and ask the Court of Appeals, the state's highest court, to hear the case.
The ruling is of broad interest because the state's highest court has not ruled on searching passengers after a police dog detects drugs in a car. That court, however, has indicated that police can search and arrest a driver if a dog signals that a car contains drugs.
Yesterday, the Court of Special Appeals said there must be "some link between the passenger and the criminal conduct in order to provide probable cause to either search or arrest the passenger."
The ruling erases the Anne Arundel County Circuit Court conviction of Earmon Alvin Wallace Sr., 34, of Landover, who was convicted in 2000 of possession with intent to distribute cocaine. Wallace was sentenced to 20 years in prison with all but five years suspended.
On July 9, 1999, he was one of four passengers in a car that an Annapolis police officer stopped after it zipped through a red light on Forest Drive, according to court documents. While the officer was checking license information, an officer with a drug dog arrived. The dog smelled drugs in the car; the car was not searched, but all five people in the car were. Police said that they felt something on Wallace and, after he wiggled around a bit, a plastic bag containing crack cocaine fell down his pants leg.
In pretrial motions, assistant public defender William Davis argued that the search was not legal. If it was, he said, it also would be legal for police to search every rider on a public trolley car if a drug dog signaled the presence of drugs on it.
"All of us travel with other people in cars they own or control. It's of concern that we would be searched and perhaps arrested as a consequence of traveling with someone else," said Bradford C. Peabody, the assistant public defender who successfully argued the case on appeal.
At least one similar case, also from Annapolis, is pending in Anne Arundel County Circuit Court, and lawyers suspect there could be more in other jurisdictions.
Anne Arundel County State's Attorney Frank R. Weathersbee said he had not studied the ruling but that he wonders whether what the court was getting at was more procedural than substantive.
Lawyers said the appeals court did not specify the procedures police could have used to search a passenger under such circumstances, whether police let the dog quit working too soon, whether police should have searched the car or under what conditions the dog could have been invited to inspect individual passengers.
Bair said his office believes that once the dog signaled that there were drugs in the car, everyone in it was under suspicion and subject to search.