Court of Appeals limits police search of vehicle passengers

Decision distinguishes between driver, occupants

December 12, 2002|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

The state's highest court further limited police drug searches yesterday, ruling that police cannot search passengers for drugs solely because a police dog detects a drug scent in a car.

The 5-2 ruling on an issue previously untouched by the Court of Appeals draws a sharp distinction between a vehicle and its driver or owner, and the passengers.

It says that a link must exist between suspected drugs and passengers before an officer can frisk the passengers.

"A passenger in an automobile is generally not perceived to have the kind of control over the contents of the vehicle as does a driver," Judge Dale R. Cathell wrote for the majority of the Court of Appeals in a case stemming from a 1999 drug arrest in Annapolis.

Defense lawyers said they believe the ruling increases the protection of individual citizens.

"I think it matters to anyone who rides as a passenger with someone else," said Bradford C. Peabody, the assistant public defender who successfully argued the appeal.

But the attorney general's office, which contended that if a drug dog alerts police to the possibility of drugs in a vehicle everyone inside falls under suspicion, will consider asking the U.S. Supreme Court to hear the case.

"It limits what the police can do," said Kathryn Grill Graeff, chief of the criminal appeals division in the Maryland attorney general's office. "Here, there were five people in the vehicle, and under the circumstances in that case we had argued that we would have probable cause to believe there were drugs."

The case stems from the July 9, 1999, arrest of Earmon Alvin Wallace Sr. after a traffic stop in Annapolis.

Wallace, then 34 and a Landover resident, was one of four passengers in a car stopped for speeding and running a red light. While the Annapolis police officer was checking license information, an officer took a drug dog to the car, and the dog detected a drug odor.

Officers who searched the passengers said that they felt something on Wallace, and after Wallace wiggled his hips, a plastic bag of crack cocaine slipped down his pants leg. Wallace was arrested.

Wallace was convicted of possession with intent to distribute drugs. He was sentenced to five years in prison.

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