PRESENT: All the Justices
TRAVIS STACEY WHITEHEAD
OPINION BY
v. Record No. 082458 JUSTICE CYNTHIA D. KINSER
September 18, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we hold that a positive alert on a vehicle
by a trained narcotics detection dog, combined with the
subsequent fruitless searches of the vehicle, the driver, and
two passengers, does not provide sufficient particularized
probable cause to allow a search of the only remaining passenger
in the vehicle. We will therefore reverse the judgment of the
Court of Appeals holding that the search at issue did not
violate the Fourth Amendment.
FACTS AND PROCEEDINGS
Around 3:00 P.M. on April 19, 2006, Officer Jay Quigley,
who was employed by the City of Suffolk Police Department,
stopped a vehicle for a traffic violation. The driver and three
passengers occupied the stopped vehicle; Travis Stacey Whitehead
was the "rear right passenger." Soon after the traffic stop,
Officer J. B. Carr arrived on the scene with his certified
narcotics detection dog, Xanto. Officer Carr and Xanto were
qualified at trial, without objection, as a "drug detection
unit" and Xanto was certified to detect the odors of marijuana,
cocaine, heroin, and methamphetamine.
While the driver and the three passengers were still inside
the vehicle, Officer Carr walked Xanto around the vehicle,
starting at the rear on the passenger's side and proceeding to
the driver's door where Xanto alerted by sitting and waiting for
his reward. Xanto is trained to sit if he detects the odor of
narcotics at his head height or above, and to lie down when the
odor is at ground level. Officer Carr relayed to Officer
Quigley the fact that Xanto had alerted on the vehicle. Other
than advising the occupants that Officer Quigley would search
the vehicle, Officer Carr and Xanto did not take any further
action with respect to the vehicle or its occupants.
Upon learning from Officer Carr that Xanto had alerted on
the vehicle, Officer Quigley directed the driver and the three
passengers to exit the vehicle. He then searched the vehicle
but found nothing. Officer Quigley next searched the vehicle's
occupants, starting with the driver, then the front passenger,
and finally the two individuals who were sitting in the back
seat. The fourth and last person to be searched was Whitehead.
Officer Quigley did not find any narcotics during his search of
the first three occupants. However, when he searched Whitehead,
Officer Quigley discovered what he described as "two syringes in
[Whitehead's] right front pants pocket [and] in the same pocket
2
was a paper towel [with] a beer bottle cap wrapped up in it."
According to Officer Quigley, the bottle cap had "a burnt
residue inside of it." Based on his training and experience,
Officer Quigley believed that the residue was heroin.
Subsequent forensic analysis of the bottle cap confirmed the
residue was in fact heroin.
Whitehead was subsequently indicted for possession of "a
Schedule I or II controlled substance, in violation of" Code
§ 18.2-250. As the case proceeded in the Circuit Court of the
City of Suffolk, Whitehead filed a motion to suppress the
evidence found on his person. At a hearing on the motion to
suppress, Whitehead conceded that the alert by the narcotics
detection dog on the vehicle gave the police officer probable
cause to search the vehicle. However, Whitehead argued that the
officer did not have probable cause to search the occupants of
the vehicle "without some sort of individualized probable cause"
as to each person.
With regard to Xanto's alert on the vehicle, the following
information was elicited during Officer Carr's cross-examination
by Whitehead's attorney:
Q. [Defense Counsel:] [Xanto has] been trained to
[detect] the odor of narcotics?
A. [Officer Carr:] Yes, sir.
Q. Now, that doesn't always mean that there are
narcotics strongly in the vehicle; is that correct?
3
A. That's correct.
Q. Sometimes there may be an old odor or something
like that?
A. Yes, sir.
Q. But there is nothing found?
A. Correct.
. . . .
Q. And when he searched the car - or the locations he
alerts on, does that actually mean that that's the
location of the drugs?
A. No. That's where he gets the odor from.
Q. Which means it's just where he's got the best
airflow?
A. Yes, sir.
The circuit court denied Whitehead's motion to suppress,
stating in its letter opinion:
I conclude, first, that the alert by the drug dog
constituted probable cause to search the vehicle.
When that search yielded no drugs, and the searches of
the driver and two other passengers likewise yielded
no drugs, I conclude that the arresting officer then
had particularized probable cause to search the
defendant, whether he had been arrested or not.
Whitehead subsequently entered a conditional guilty plea
reserving his right to challenge on appeal the circuit court's
denial of his motion to suppress. The circuit court found
Whitehead guilty of the charged offense and sentenced him to
five years incarceration, with three years and two months
suspended.
4
The Court of Appeals of Virginia, in a published opinion,
held that the circuit court did not err in denying the motion to
suppress and thus affirmed Whitehead's conviction. Whitehead v.
Commonwealth, 53 Va. App. 1, 7, 668 S.E.2d 435, 438 (2008). The
Court of Appeals concluded that, "[e]ven if we assume arguendo
that a trained dog's detection of the scent of drugs coming from
an occupied car does not, of itself, provide sufficiently
particularized probable cause to search each of the car's
occupants for drugs, . . . on these facts . . . the search of
Whitehead's person did not violate the Fourth Amendment." Id.
at 5, 668 S.E.2d at 436-37. Continuing, the Court of Appeals
stated:
In this case, the officers had probable cause to
search the car following Xanto's alert. And, by the
time the officers searched Whitehead, they had
probable cause to search his person through the
process of elimination. Each fruitless search - of
the car and of the other occupants of the car -
increased the likelihood that Whitehead possessed the
odorous contraband detected by Xanto's trained nose.
While it may have been more a result of luck rather
than a profound understanding of the Fourth Amendment,
we hold that by the time the officers searched
Whitehead they possessed the necessary probable cause
to justify the search.
Id. at 7, 668 S.E.2d at 438 (footnote omitted). 1
1
The Court of Appeals also concluded that Whitehead lacked
standing to challenge the searches of the first, second, and
third occupants of the vehicle and therefore refused to address
Whitehead's argument that the court should ignore those previous
fruitless searches in deciding whether probable cause existed to
search him. The Court of Appeals stated that it "assess[es] the
5
We granted Whitehead this appeal. In his sole assignment
of error, Whitehead asserts the Court of Appeals erred in
holding that the search of his person did not violate the Fourth
Amendment.
DISCUSSION
On appeal, Whitehead does not challenge the lawfulness of
the traffic stop or the fact that the police officer had
probable cause to search the vehicle based on the positive alert
by the narcotics detection dog. See Jones v. Commonwealth, 277
Va. 171, 180, 670 S.E.2d 727, 732 (2009) (a positive alert from
a narcotics detection dog establishes probable cause to search a
vehicle). Thus, the only issue in this case is whether, after
the search of the vehicle and three of its four occupants
revealed no contraband, the police officer then had probable
cause to search Whitehead. 2
The appellate standard of review applicable in this case is
well settled:
existence of probable cause at the time the search [is]
conducted." Whitehead, 53 Va. App. at 7 n.3, 668 S.E.2d at 438
n.3.
2
As Whitehead correctly notes, a search of his person was
justified only as a search incident to a custodial arrest. See
United States v. Robinson, 414 U.S. 218, 236 (1973) (search
incident to a custodial arrest does not violate the Fourth
Amendment). Thus, the actual question is whether probable cause
existed to arrest Whitehead. See United States v. Di Re, 332
U.S. 581, 587 (1948) (determining whether defendant was lawfully
arrested since ensuing search was permissible if probable cause
to arrest existed).
6
In reviewing the denial of a motion to suppress
evidence claiming a violation of a person's Fourth
Amendment rights, we consider the facts in the light
most favorable to the Commonwealth, the prevailing
party at trial. The burden is on the defendant to show
that the trial court committed reversible error. We
are bound by the trial court's factual findings unless
those findings are plainly wrong or unsupported by the
evidence. We will review the trial court's application
of the law de novo.
Malbrough v. Commonwealth, 275 Va. 163, 168-69, 655 S.E.2d
1, 3 (2008); accord Murphy v. Commonwealth, 264 Va. 568,
573, 570 S.E.2d 836, 838 (2002).
Relying on the rationale of the Court of Appeals, the
Commonwealth argues that by the time the police officer searched
Whitehead, the officer had the necessary probable cause to
justify that search. Whitehead, however, asserts the positive
alert by the narcotics detection dog provided probable cause to
search only the vehicle and that there were no facts
particularized as to him to establish probable cause that he was
engaged in criminal activity. Our analysis of the issue before
us is guided by the decisions of the Supreme Court of the United
States in United States v. Di Re, 332 U.S. 581 (1948), Ybarra v.
Illinois, 444 U.S. 85 (1979), and Maryland v. Pringle, 540 U.S.
366 (2003), and this Court's decision in El-Amin v.
Commonwealth, 269 Va. 15, 607 S.E.2d 115 (2005).
In Di Re, an informant named Reed told an investigator that
he was to buy "counterfeit gasoline ration coupons" from an
7
individual named Buttitta at a particular location. 332 U.S. at
583. The investigator and a detective followed Buttitta's
vehicle until it arrived at the appointed place. Id. The
officers proceeded to the vehicle and found Reed, the only
occupant of the rear seat, holding two gasoline ration coupons,
which later proved to be counterfeit. Id. Reed stated he had
obtained the coupons from Buttitta, who was sitting in the
driver's seat. Id. Michael Di Re was sitting in the front seat
beside Buttitta. Id. All three were taken into custody,
frisked for weapons, and transported to the police station. Id.
At the police station, Di Re complied with a request to empty
the contents of his pockets. Id. Upon doing so, Di Re pulled
out two gasoline and several fuel oil ration coupons. Id. Di
Re was subsequently "booked" and another search at that time
revealed one hundred gas ration coupons. All the coupons in Di
Re's possession were counterfeit. Id.
The Government argued the search of Di Re was "justified as
incident to a lawful arrest" or, in the alternative, that the
"search of his person was justified as incident to search of a
vehicle reasonably believed to be carrying contraband." Id. at
583-84. The Supreme Court initially considered the second
ground and assumed without deciding, since the vehicle was not
searched, that there was probable cause to search the vehicle.
The Court then held:
8
We see no ground for expanding the ruling in
[Carroll v. United States, 267 U.S. 132 (1925)] to
justify this arrest and search as incident to the
search of a car. 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.
Id. at 586-87.
Since the Government also defended the search on the basis
that it was incident to a lawful arrest, the Court then
determined whether there was probable cause to arrest Di Re and
search his person incident to that arrest. Noting the
Government conceded that the only person who committed a
possible misdemeanor in the open presence of the officer was
Reed, and that the police had acquired previous information as
to Buttitta's selling coupons to Reed but had no such
information as to Di Re, the Court concluded that Di Re's
presence was not enough to justify the arrest. Id. at 592. The
Court also rejected the Government's reliance on a conspiracy to
show probable cause to arrest Di Re. Id. at 593. The Court
stated that
whatever suspicion might result from Di Re's mere
presence seems diminished, if not destroyed, when
Reed, present as the informer, pointed out Buttitta,
and Buttitta only, as a guilty party. No reason
appears to doubt that Reed willingly would involve Di
Re if the nature of the transaction permitted. Yet he
did not incriminate Di Re. Any inference that
everyone on the scene of a crime is a party to it must
disappear if the Government informer singles out the
guilty person.
9
Id. at 594.
In Ybarra, several police officers executed a warrant
authorizing the search of a particular tavern and its bartender.
444 U.S. at 88. Upon entering the tavern, the officers informed
all those present that they were going to conduct a "cursory
search for weapons." Id. One of the officers proceeded to pat
down each of the customers, including Ventura Ybarra. Id.
Although the officer felt what he described as "a cigarette pack
with objects in it," he did not remove the pack from Ybarra's
pocket. Id. Instead, he proceeded to pat down other customers.
Id. Several minutes later, the officer returned to Ybarra and
frisked him once again, relocating and retrieving the cigarette
pack. Id. at 89. Inside the pack the officer found six foil
packets containing a substance that later proved to be heroin.
Id. The trial court denied Ybarra's motion to suppress the
evidence found during the search of his person because the
search was justified under an Illinois statute. 3 Id.
The Supreme Court, in reviewing the case, first noted that
the complaint for the search warrant did not allege that persons
illegally purchasing drugs frequented the bar, nor did it even
3
"An Illinois statute authorize[d] law enforcement officers
to detain and search any person found on premises being searched
pursuant to a search warrant, to protect themselves from attack
or to prevent the disposal or concealment of anything described
in the warrant." Ybarra, 444 U.S. at 87.
10
so much as mention the patrons of the tavern. Id. at 90. The
Court concluded that "[n]ot only was probable cause to search
Ybarra absent at the time the warrant was issued, it was still
absent when the police executed the warrant" because the police
"had no reason to believe that he had committed, was committing,
or was about to commit any offense under state or federal law."
Id. at 90-91. According to the Court, "Ybarra made no gestures
indicative of criminal conduct, made no movements that might
suggest an attempt to conceal contraband, and said nothing of a
suspicious nature to the police officers." Id. at 91. Thus,
the Court found that "the agents knew nothing in particular
about Ybarra, except that he was present, along with several
other customers, in a public tavern at a time when the police
had reason to believe that the bartender would have heroin for
sale." Id.
The Court further explained:
It is true that the police possessed a warrant
based on probable cause to search the tavern in which
Ybarra happened to be at the time the warrant was
executed. But, a person's mere propinquity to others
independently suspected of criminal activity does not,
without more, give rise to probable cause to search
that person. Where the standard is probable cause, a
search or seizure of a person must be supported by
probable cause particularized with respect to that
person. This requirement cannot be undercut or
avoided by simply pointing to the fact that
coincidentally there exists probable cause to search
or seize another or to search the premises where the
person may happen to be. The Fourth and Fourteenth
11
Amendments protect the legitimate expectations of
privacy of persons, not places.
Each patron who walked into [the tavern] was
clothed with constitutional protection against an
unreasonable search or an unreasonable seizure. That
individualized protection was separate and distinct
from [that] protection possessed by the proprietor of
the tavern or by [the bartender]. Although the search
warrant, issued upon probable cause, gave the officers
authority to search the premises and to search [the
bartender], it gave them no authority whatever to
invade the constitutional protections possessed
individually by the tavern's customers.
Id. at 91-92 (footnotes, citations, and internal quotation marks
omitted).
The Court also rejected the State's argument that the first
pat down of Ybarra, permissible as a Terry frisk, provided
justification for the second search that uncovered the heroin.
The Court held, "[t]he initial frisk of Ybarra was simply not
supported by a reasonable belief that he was armed and presently
dangerous, a belief which this Court has invariably held must
form the predicate to a pat down of a person for weapons." Id.
at 92-93 (footnote omitted).
In Pringle, a police officer stopped a vehicle for
speeding. 540 U.S. at 368. Three occupants were in the
vehicle: the driver, who was also the owner of the vehicle;
Pringle, the front-seat passenger; and the back-seat passenger.
Id. When the driver opened the glove compartment to retrieve
his registration, the officer observed a large amount of rolled-
12
up cash. Id. During a consensual search of the vehicle, the
police officer retrieved $763 from the glove compartment and
"five plastic glassine baggies containing cocaine from behind
the back-seat armrest." Id. After none of the occupants of the
vehicle would provide information about the ownership of the
contraband, the officer arrested all three individuals and
transported them to the police station. Id. at 368-69.
Pringle, while in custody and after waiving his Miranda
rights, admitted that the cocaine belonged to him and claimed
the other occupants did not know about the drugs. Id. at 369.
The trial court denied Pringle's motion to suppress these
statements as the fruit of an illegal arrest, holding that the
officer had probable cause to arrest Pringle. Id. On review
before the Supreme Court, it was uncontested that the officer,
upon recovering the five plastic baggies containing suspected
cocaine, had probable cause to believe a felony had been
committed. Id. at 370. Thus, "[t]he sole question [was]
whether the officer had probable cause to believe that Pringle
committed that crime." Id. In deciding that question, the
Court stated:
We think it an entirely reasonable inference from
these facts that any or all three of the occupants had
knowledge of, and exercised dominion and control over,
the cocaine. Thus a reasonable officer could conclude
that there was probable cause to believe Pringle
committed the crime of possession of cocaine, either
solely or jointly.
13
Id. at 372.
The Court distinguished its holding in Ybarra, explaining:
Pringle and his two companions were in a relatively
small automobile, not a public tavern. [We have] noted
that "a car passenger – unlike the unwitting tavern
patron in Ybarra – will often be engaged in a common
enterprise with the driver, and have the same interest
in concealing the fruits or the evidence of their
wrongdoing." Here we think it was reasonable for the
officer to infer a common enterprise among the three
men. The quantity of drugs and cash in the car
indicated the likelihood of drug dealing, an
enterprise to which a dealer would be unlikely to
admit an innocent person with the potential to furnish
evidence against him.
Id. at 373 (quoting Wyoming v. Houghton, 526 U.S. 295, 304-05
(1999) (citations omitted)). The Court also noted that, unlike
the situation in Di Re when the informant singled out the guilty
person, none of the three men singled out any one of them with
respect to the ownership of the cocaine or money. Id. at 374.
Finally, in this Court's decision in El-Amin, we upheld the
constitutionality of a frisk for weapons based on an officer's
reasonable and particularized suspicion that El-Amin was armed
and dangerous. 269 Va. at 23, 607 S.E.2d at 119. There, police
officers received an anonymous tip that six young black males
were at a specified location smoking marijuana. Id. at 18, 607
S.E.2d at 116. Two officers responded, and although they
observed no signs of criminal activity, they approached four
young black males walking near the identified location and asked
to speak with them. Id. Two of the men walked over to the
14
police officers, but El-Amin and the fourth individual remained
further back and separate from each other. Id. Two other
police officers then arrived on the scene, and one of them,
Officer Williams, "immediately observed the fourth individual
turn away and shove his hands into his waistband." Id. Officer
Williams directed the fourth individual to turn around and face
him, but that individual did not comply. Id. So, Officer
Williams conducted a pat down search of the fourth individual.
Id. When the officer felt what he believed was a gun, he yelled
"gun." Id. Officer Williams found a pellet gun in the fourth
individual's waistband. Id.
Upon hearing Officer Williams yell "gun," another officer
conducted a pat down search of El-Amin and found a .38-caliber
revolver. Id. The officer then arrested El-Amin for illegal
possession of a firearm as a juvenile, searched him incident to
the arrest, and found marijuana and cocaine in his pockets. Id.
El-Amin contended that the officer had no particularized
suspicion to believe he was engaged in criminal activity or that
he was a danger to the officer and, therefore, "the search and
seizure, based solely on El-Amin's association or physical
proximity to the other three youths, was unconstitutional." Id.
at 19-20, 607 S.E.2d at 117. The Commonwealth argued that the
legitimate concern for officer safety justified the pat down at
issue and that, under those circumstances, particularized
15
suspicion was not required. Id. at 21, 607 S.E.2d at 118. The
Commonwealth urged the Court to adopt a rule in such cases that
"approves the search of the companion of a person validly
detained based solely on the status of companion." Id.
This Court declined to adopt such a per se rule. Id.
Nevertheless, we concluded that the officer's concern for his
and the other officers' safety was warranted because the
encounter took place in the evening in a high crime area and the
four individuals appeared to be in a group. Id. at 22, 607
S.E.2d at 118. Continuing, we held:
[U]pon learning that the fourth individual had a hand
gun, [the police officer] was warranted in inferring
that the inherent tendency toward violence
demonstrated by one group member carrying a gun raised
reasonable and particularized safety concerns as to
other members of the same group. The circumstances in
this case support the officer's objectively reasonable
apprehension that, upon discovery of a weapon on the
person of one member of the group, the other members
of the group might also be armed and dangerous.
Id. at 23, 607 S.E.2d at 119.
In reaching this conclusion, we emphasized
that El-Amin's companionship status alone was [not]
sufficient to authorize a pat down search [and] that
an officer's generalized concern for his safety alone
would [not] validate such a search under the Fourth
Amendment. The totality of the facts in this case –
place, time, discovery of a weapon, and group activity
– validates the pat down search under the principles
utilized by the Supreme Court when considering Fourth
Amendment challenges to searches and seizures.
Id. We also distinguished Ybarra, stating:
16
Ybarra is not dispositive here because in Ybarra the
officers did not consider the patron and bartender as
part of a group, the officers had no reason to believe
that they were subject to any particular danger from
any of the patrons in the bar, and simply told all
patrons that they were conducting a cursory search for
weapons.
Id. at 22 n.5, 607 S.E.2d at 118 n.5 (internal quotation marks
omitted).
The United States Supreme Court's decisions in Di Re and
Ybarra demonstrate that probable cause to arrest and/or search
an individual must be particularized to that individual; mere
proximity to criminal activity alone is insufficient to
establish probable cause. However, as illustrated by the
decision in Pringle, evidence showing a common criminal
enterprise can provide the necessary link between criminal
activity and an individual so as to establish probable cause
sufficiently particularized to that individual. Although El-
Amin involved a frisk for weapons based on the lesser standard
of reasonable articulable suspicion, see Bass v. Commonwealth,
259 Va. 470, 475, 525 S.E.2d 921, 923 (2000) (recognizing that
the standard of "reasonable suspicion" requires a lesser showing
than the standard of "probable cause"), this Court nevertheless
required something more than El-Amin's mere companionship
status. Instead, we considered the totality of the
circumstances, i.e., "place, time, discovery of a weapon, and
group activity," and concluded that sufficient particularized
17
safety concerns existed as to El-Amin and the other members of
the group to justify the frisk for weapons. El-Amin, 269 Va. at
23, 607 S.E.2d at 119.
In the case at bar, viewing the evidence in the light most
favorable to the Commonwealth, we hold that probable cause to
search Whitehead was absent. After the positive alert by the
trained narcotics detection dog, Officer Quigley unquestionably
had probable cause to search the vehicle. See Jones, 277 Va. at
180, 670 S.E.2d at 732. However, without something more, the
positive alert did not provide probable cause sufficiently
particularized as to Whitehead to allow the search of his
person. In contrast to the situation in Pringle, the
Commonwealth presented no evidence, other than Whitehead's
status as a passenger in the vehicle, indicating that Whitehead
and the other passengers were involved in any common enterprise
involving criminal activity. There also was no evidence
indicating Whitehead individually was committing, had committed,
or was about to commit a criminal offense. See Di Re, 332 U.S.
at 594 (informant singled out guilty individual).
The Commonwealth, however, argues that Xanto's positive
alert indicated that contraband was present somewhere, and after
no contraband was found in the vehicle or on the other three
occupants, that somewhere had to be on Whitehead's person.
Based on the evidence in this record, we are unwilling to draw
18
such a conclusion. While the fruitless searches of the vehicle
and the other occupants increased the likelihood that the
contraband detected by Xanto was on Whitehead's person, it also
increased the likelihood that the dog alerted to the odor of
contraband no longer present in the vehicle. Officer Carr
testified at the suppression hearing that a positive alert by
Xanto did not necessarily mean that drugs were currently present
in the automobile; rather, Xanto could have alerted to an "old
odor."
The positive alert by Xanto and the subsequent fruitless
searches of the vehicle and three of its occupants may have
created a strong suspicion that contraband was present on
Whitehead's person; however, probable cause requires more than a
strong suspicion. See Jones, 277 Va. at 178, 670 S.E.2d at 731
("[P]robable cause exists when 'there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.'") (quoting United States v. Grubbs, 547 U.S. 90, 95
(2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))).
Based on the record in this case, the positive alert and the
fruitless searches were not sufficient to establish probable
cause particularized as to Whitehead that he was concealing
contraband on his person. Evidence of other factors such as
those present in Pringle or El-Amin was needed to establish the
requisite probable cause. See State v. Voichahoske, 709 N.W.2d
19
659, 671 (Neb. 2006) (finding that a positive canine alert on a
vehicle and subsequent fruitless search of the vehicle, combined
with evidence of complicity in concealing the identity of the
driver of the vehicle, provided probable cause particularized to
the passenger that he was concealing drugs on his person); see
also State v. Gibson, 108 P.3d 424, 430 (Idaho Ct. App. 2005)
("Probable cause to believe that drugs are located in an
automobile may not automatically constitute probable cause to
arrest all persons located in the vehicle; some additional
factors would generally have to be present, indicating to the
officer that those persons possessed the contraband."); People
v. Fondia, 740 N.E.2d 839, 843 (Ill. App. Ct. 2000) ("'A canine
alert on the exterior of the vehicle supports the general
proposition that drugs may well be located within the vehicle,
but not the more specific proposition that the drugs are
concealed on a particular occupant thereof.'" (quoting Woodbury
v. Florida, 730 So. 2d 354, 359 (Fla. Dist. Ct. App. 1999)
(Harris, J., dissenting))); State v. Wallace, 812 A.2d 291, 302-
03 (Md. 2002) (holding that a positive canine alert on a
vehicle, without any other indicia of possession of contraband
specifically related to the passenger, is insufficient to
establish probable cause to search a non-owner, non-driver of
the vehicle). But see United States v. Anchondo, 156 F.3d 1043,
1045 (10th Cir. 1998) (holding that a positive canine alert
20
provides probable cause to arrest the driver of the vehicle and
finding that a fruitless search of the vehicle made it more
likely that the contraband was on the bodies of the driver and
passenger); State v. Ofori, 906 A.2d 1089, 1099 (Md. Ct. Spec.
App. 2006) ("Because 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.").
CONCLUSION
For these reasons, we conclude the search of Whitehead's
person violated his Fourth Amendment rights. The Court of
Appeals erred by holding otherwise. Because the evidence seized
from Whitehead should have been suppressed, there would be
insufficient evidence to sustain a conviction on retrial.
Accordingly, we will reverse the judgment of the Court of
Appeals, vacate Whitehead's conviction, and dismiss the
indictment. See Jackson v. Commonwealth, 267 Va. 666, 681, 594
S.E.2d 595, 603 (2004).
Reversed and dismissed.
21