Wallace v. State

KENNEY, Judge. Appellant, Earmon Alvin Wallace, Sr., was convicted at a bench trial on an agreed statement of facts in the Circuit Court for Anne Arundel County of possession with intent to distribute cocaine. 1 Appellant asks a single question on appeal: Did the trial court err in denying the motion to suppress the evidence seized from appellant? ⁶⁷⁷ We answer in the affirmative and reverse appellant’s conviction. Factual and Procedural Background At the suppression hearing, the State called three Annapolis City Police Officers: Jessica Hertik, Elizabeth Nelson, and Jonathan Supko. Officer Hertik testified that at approximately 3:00 a.m. on July 9, 2000, she was driving her marked police car eastbound on Forest Drive in Annapolis, Maryland.

As she approached Hilltop Lane, a forty mile per hour road, she observed a four-door Buick driving at a high rate of speed in the opposite direction. She made a U-turn and accelerated to 90 m.p.h. to catch up to the Buick. In addition to speeding, Officer Hertick saw the vehicle run a red light. Officer Hertick then activated her emergency equipment and the Buick pulled over.

Officer Hertik stopped behind the vehicle and exited her car, approaching the driver’s side of the Buick. Sitting inside the vehicle was the male driver, a male front seat passenger, and three back seat passengers, appellant and two women. Officer Hertik recognized appellant and two of the other passengers from a previous encounter, although she did not say how. She informed the driver that she had stopped the vehicle for speeding and not stopping at a traffic light.

Officer Hertik requested the driver’s license and car registration, and he complied. When Officer Hertik walked back to her car, she met Officer Nelson, who was on duty with Bosco, her drug detection dog. Officer Hertik explained what had occurred and then proceeded to run a license check and write two tickets. In the meantime, other units had arrived on the scene, and these additional officers 2 watched the Buick while Bosco scanned the vehicle. 3 Bosco made two positive alerts to the ⁶⁷⁸ presence of drugs at the rear seam of the driver’s side front door.

Officer Nelson testified that, because of air currents in the vehicle, there is little correlation between where a canine alerts and where drugs are found in the vehicle. Officer Nelson advised Officer Hertik, who was still in the process of writing tickets, that Bosco had “made a positive alert on the vehicle.” While Officer Nelson placed Bosco in the back of her car, Officer Hertik approached the vehicle to speak with the driver. She informed the driver that she suspected that the vehicle contained drugs and asked the occupants to exit the vehicle so the police could search them. The occupants were taken out of the car one at a time and searched while, the others remained in the car.

The other officers at the scene watched the occupants of the car while the searches were being conducted. Officer Supko testified that his actions were not a mere “frisk” or “pat down” but were intended to discover anything suspicious. Officer Supko searched the three males, beginning with the driver. The front seat passenger was searched next.

Officer Supko then searched appellant, who was sitting behind the front passenger seat. During the search “for anything apparent[,][w]eapons and what not[,]” Officer Supko felt a hard object near appellant’s groin, which he said he knew was not a gun, knife, or other weapon. Officer Supko handcuffed appellant with his hands behind his back, told him he was “not under arrest at the time[,]” and walked him to a grassy area away from the road. Officer Supko stated that he had handcuffed appellant “just for my safety and his safety.” As they walked, appellant moved his hips in an apparent attempt to shake the object loose.

When the officer searched appellant’s groin area again, the object was gone. Officer Supko saw, however, something protruding from appellant’s left pants leg, which turned out to be a clear plastic baggie ⁶⁷⁹ containing several pieces of suspected cocaine. Appellant was placed under arrest. The two females were searched after appellant.

Officer Hertiek searched one of them herself. Only after the occupants were searched did Officer Hertiek search the vehicle. She found $1,155 in cash in someone’s shorts in the front passenger seat, and a knife in a purse in the back seat. No drugs were found in the car.

Prior to trial, appellant moved to suppress the evidence found on his person. He argued that a canine alert to the presence of drags in a car, without more, did not give the police probable cause to perform a warrantless search of a passenger. The suppression court disagreed and denied his motion. It is from that ruling that appellant appeals.

Standard of Review When reviewing the denial of a motion to suppress, the record at the suppression hearing is the exclusive source of facts for our review. Lee v. State, 311 Md. 642, 648 , 537 A.2d 235 (1988); Aiken v. State, 101 Md.App. 557, 563 , 647 A.2d 1229 (1994), cert. denied, 337 Md. 89 , 651 A.2d 854 (1995). We extend great deference to the fact finding of the suppression judge and accept the facts as found, unless clearly erroneous. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. 341, 346-47 , 574 A.2d 356 (1990).

We review the evidence in the light most favorable to the prevailing party; in this case, the State. Riddick, 319 Md. at 183 , 571 A.2d 1239 . Nevertheless, we make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Jones v. State, 111 Md.App. 456, 466 , 681 A.2d 1190 , cert. denied, 344 Md. 117 , 685 A.2d 451 (1996) (citing Ornelas v. United States, 517 U.S. 690 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996)).

DISCUSSION Appellant argues that the police lacked probable cause to search him based on case law that holds that probable cause to ⁶⁸⁰ search a passenger of an automobile does not exist without some linkage to the commission of a crime. The State argues that the trial court properly denied appellant’s motion to suppress, asserting that “the dog’s behavior signaled the presence of drugs in the car generally. As such, the search of the occupants of the car was fully justified for Fourth Amendment purposes.” This is an issue of first impression in Maryland. A. The Court’s Ruling The motion court made the following ruling: For the following reasons, the Court believes the search of the Defendant was lawful based on probable cause.

The Court finds from the facts that the police officer had reasonable grounds and had probable cause to stop the vehicle because she observed the vehicle committing a traffic offense. Pryor v. State, 122 Md.App. 671 [ 716 A.2d 338 ], cert. denied, 352 Md. 312 [ 721 A.2d 990 ] (1998). Incidental to the stop it is the police officer’s obligation to conduct a routine record check as to the validity of the driver’s license and vehicle registration. Munafo v. State, 105 Md.App. 662 [ 660 A.2d 1068 ] (1995).

See, also, United State[s] v. Shabazz, 993 F.2d 431 (5th Cir.1993). However, Maryland law demands that a motorist who is subjected to a traffic stop for a minor traffic violation “cannot be detained at the scene of the stop longer than it takes — or reasonably should take — to issue a citation for the traffic violation that the motorist committed.” Pryor , at 674-675 [ 716 A.2d 338 ]. In this case, there is no issue that the Defendant was detained any longer than it would reasonably take to issue a citation. The testimony is clear that Officer Nelson arrived seconds after Officer Hertik stopped the vehicle.

In fact, both officers met at the rear of the vehicle in which the Defendant was a passenger, spent ten seconds discussing the matter, and then an additional 30 seconds for the officer to get the dog and walk it around the vehicle. Lastly, Hertik testified she had not even completed the first ticket when ⁶⁸¹ she was advised by Nelson that the dog had alerted on the vehicle. The only novel issue to be discussed then, is whether probable cause existed for a search of the individuals in the vehicle. We know that when a canine alerts to a vehicle indicating the likelihood of contraband, sufficient probable cause exists to conduct a warrantless search of the vehicle.

Gadson v. State, 341 Md. 1 [ 668 A.2d 22 ] (1995), cert. denied, [ 517 U.S. 1203 ] 116 S.Ct. 1704 [ 134 L.Ed.2d 803 ] (1996). Accord United States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir., 1990); In Re Montrail M., 87 Md.App. [420,] 437 [ 589 A.2d 1318 (1991)]. What these cases do not address is the right of the police officer to search the passengers of the vehicle with nothing more than the canine alerting to the vehicle. The Supreme Court, in Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983) indicated that, concerning a canine alert, “a positive result would have resulted in his justifiable arrest on probable cause.” Page 1329.

This was in reference to luggage which had been detained for a canine scan. In addition, the Court of Special Appeals in Timmons v. State, 114 Md.[App.] 410 [ 690 A.2d 530 ] (1997) at 416 [ 690 A.2d 530 ], seemed to agree that once the dog alerted, “there was probable cause to do anything.” Defendants cite Livingston v. State of Maryland, 317 Md. 408 [ 564 A.2d 414 ] (1989) as authority indicating there was no probable cause to search the passengers in the vehicle. In Livingston the court concluded that marijuana seeds located on the front floor of an automobile does not empower an officer with sufficient cause to believe that a back seat passenger has dominion and control over the contraband. Clearly, as the court pointed out, the Fourth Amendment of the United States Constitution guarantees the “right of the people to be secure in their persons ...” U.S. Constitution, Amendment 4.

As pointed out in Livingston , the result of these protections is that the police ought to obtain a search warrant to conduct a valid search of an individual unless probable cause exists to do so at the scene. ⁶⁸² Unlike Livingston , the Court believes the dog alerting to drugs in a confined space such as the interior of the '99 Buick coupled with expert testimony that the odor will linger even after these drugs are removed from the vehicle, is sufficient probable cause to search the vehicle and the occupants. (The search of the vehicle revealed no drugs or paraphernalia although money was found in the vehicle which the dog later, at the station, hit upon as having the odor of drugs). Probable cause existed to believe that a), drugs were in the car, and b). that each Defendant had either constructive or actual possession of same. It is the alert on the interior of the car with five passengers that distinguishes this case from Livingston .

The Court finds that individuals are clearly “clothed with constitutional protection against an unreasonable search or an unreasonable seizure.” Ybarra v. Illinois, 100 S.Ct. 338 , 444 U.S. 85, 342 [sic] [ 62 L.Ed.2d 238 ] (1979). However, even in Ybarra , the court indicated “not 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.” Page 342. Unlike Ybarra , in this case the probable cause existed for the police officers to reasonably believe that drugs were in that vehicle or in the vehicle by being on the person of the occupants. “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.” Ybarra , at 342. In the case at bar, the appellate courts have previously stated that the canine scan is probable cause to search and/or seize.

As a result, the seizure and the search of the Defendant was based on probable cause. B. The Traffic Stop Officer Hertik observed that the Buick was obviously speeding and saw it run a red light. The officer having observed the traffic violation, the traffic stop was clearly proper. Pryor v. State, 122 Md.App. 671, 679 , 716 A.2d 338 , cert. denied, 352 Md. 312 , 721 A.2d 990 (1998) (citing Goode v. ⁶⁸³ State, 41 Md.App. 623, 629-30 , 398 A.2d 801 (1979)). “The intrusion permitted [in a traffic stop, however,] ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’ ” Snow v. State, 84 Md.App. 243, 264 , 578 A.2d 816 (1990) (quoting Florida v. Royer, 460 U.S. 491, 500 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983)).

Although Officer Hertik apparently recognized some of the car’s occupants, including appellant, from unspecified prior dealings, she immediately began processing two traffic tickets. Officer Nelson, having arrived at the scene virtually simultaneously with Officer Hertik, took the opportunity to have Bosco sniff the outside of the car. This occurred contemporaneously with Officer Hertik’s actions in processing the tickets, which she had not completed at the time Bosco alerted. Consequently, there was no undue delay.

See Wilkes v. State, 364 Md. 554, 576-77 , 774 A.2d 420 (2001); Snow, 84 Md.App. at 265 , 578 A.2d 816 . A “dog sniff of a vehicle conducted during a lawful detention is not a ‘search’ within the meaning of the Fourth Amendment.” Gadson v. State, 341 Md. 1 , 8 n. 4, 668 A.2d 22 (1995), cert. denied, 517 U.S. 1203 , 116 S.Ct. 1704 , 134 L.Ed.2d 803 (1996); In re Montrail M., 87 Md.App. 420, 436-37 , 589 A.2d 1318 (1991), aff'd, 325 Md. 527 , 601 A.2d 1102 (1992). See also United States v. Place, 462 U.S. 696, 707 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983). Accordingly, the actions taken by the officers up to and including the canine sniff 4 of the Buick were proper.

We next turn our attention to the actions that occurred after Bosco’s positive alert to the car. C. Search of Vehicle’s Occupants The State does not argue that the officers had the right to frisk and that, as a result of the frisk, the presence of ⁶⁸⁴ contraband became readily apparent. 5 The State’s argument in this case, rather, is that Bosco’s positive alert provided the officers with probable cause to search appellant without a warrant. The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Fourth Amendment does not denounce all searches or seizures, however, but only those that are unreasonable.

See Carroll v. United States, 267 U.S. 132, 147 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); Wilkes, 364 Md. at 570, 774 A.2d 420 . “[A] police officer is generally required to obtain a search warrant to conduct a valid search of an individual. Nevertheless, there are exceptions to this requirement^]” Livingston v. State, 317 Md. 408, 410 , 564 A.2d 414 (1989). For example, a search incident to arrest does not require a warrant. State v. Evans, 352 Md. 496, 516 , 723 A.2d 423 , cert. denied, 528 U.S. 833 , 120 S.Ct. 310 , 145 L.Ed.2d 77 (1999) (citing Illinois v. Rodriguez, 497 U.S. 177, 185 , 110 S.Ct. 2793 , 111 L.Ed.2d 148 (1990)).

In addition, if contraband were in plain view on a person, a warrantless search could be conducted. Livingston, 317 Md. at 412 , 564 A.2d 414 . Valid consent is also an exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041, 2043-44 , 36 L.Ed.2d 854 (1973); Doering v. State, 313 Md. 384, 401-02 , 545 A.2d 1281 (1988).

The State does not claim that any of these exceptions are applicable in this case. ⁶⁸⁵ Of the firmly rooted exceptions to the warrant requirement, a search incident to lawful arrest is the only one that authorizes a full-blown search of a person for the purpose of discovering evidence. (The frisk component of a stop-and-frisk authorizes the pat-down of the clothing surface for the limited purpose of detecting the presence of a weapon.) 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 war-rantless searches for the purpose of discovering and seizing evidence of crime. That the police have probable cause for a lawful arrest of a person does not in and of itself justify a warrantless search of that person.

The search must be incident to an arrest itself. It may not be incident merely to good cause to make an arrest. State v. Funkhouser, 140 Md.App. 696, 724-25 , 782 A.2d 387 (2001). Accordingly, to substantiate a search of the passengers in the vehicle, Bosco’s positive alert must have provided the police with probable cause to arrest the occupants of the car, and they must have actually arrested the occupants.

In this case, appellant was specifically advised that he was not under arrest, and the State does not argue that the police were conducting a Terry frisk. 6 It is undisputed that, until Bosco alerted to the car, there was no probable cause to search the car or to make any arrests. Although the presence of Officer Nelson and Bosco fortuitously allowed the police to conduct a valid canine scan, Officer Hertik did not appear to ⁶⁸⁶ be suspicious of the presence of contraband, as she indicated by proceeding immediately to prepare the traffic tickets. On the other hand, once a drug detection dog alerted, the police had probable cause to search the interior physical parts of a vehicle. Godson, 341 Md. at 8 , 668 A.2d 22 (1995); In re Montrail M., 87 Md.App. at 437 , 589 A.2d 1318 .

Place, 462 U.S. 696 , 103 S.Ct. 2637 ; United States v. Lovell, 849 F.2d 910, 913 (5th Cir.1988). The police may detain the vehicle’s occupants while the search is conducted, Timmons v. State, 114 Md.App. 410, 417 , 690 A.2d 530 (1997), and pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct 1868 , 20 L.Ed.2d 889 (1968), the officers may ask questions to further the investigation, and they may frisk the vehicle’s occupants if they suspect that one or more of them is armed with a weapon. Pryor, 122 Md.App. at 679 , 716 A.2d 338 (quoting Derricott v. State, 327 Md. 582, 587 , 611 A.2d 592 (1992)). 7 Both the Court of Appeals and this Court have implied in recent cases, albeit in dicta, that a drug dog’s positive alert may give rise not only to the right to search a car but the right to arrest an occupant without a warrant. Wilkes, 364 Md. at 587 n. 24, 774 A.2d 420 ; Funkhouser, 140 Md.App. at 722 , 782 A.2d 387 .

In both of these cases, however, the driver was the sole occupant of the car. Neither court has yet had the opportunity to address directly the issue of whether a positive canine alert alone can provide the police with probable cause to arrest a passenger in the vehicle and to conduct a search incident to that arrest. D. Cases Relied on by the Motion Court Before we discuss the case law in other jurisdictions, we will discuss the cases relied on by the trial court in denying the motion to suppress. ⁶⁸⁷ The court first cited Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 , in support of the right to search passengers in this situation. We do not find this case persuasive because of the factual distinctions and the manner in which passengers are treated under Maryland law, which we discuss in more detail below.

Royer was in Miami International Airport when a canine alerted to the presence of narcotics in his luggage. The Supreme Court held that “a positive result would have resulted in his justifiable arrest on probable cause.” Royer, 460 U.S. at 506 , 103 S.Ct. 1319 . Royer was, of course, not a passenger in an automobile at the time of the dog sniff. Moreover, because he had been seen carrying the luggage, there was a direct connection between the luggage and Royer.

In this case, the scent could not be traced to a particular individual in the car. Timmons, 114 Md.App. 410 , 690 A.2d 530 , requires more discussion. Timmons was a passenger in a car that had been stopped for speeding. None of the three occupants in the car had a valid driver’s license, all appeared “excessively nervous,” and gave conflicting stories.

One of the troopers decided to conduct a canine scan of the car, and the dog gave a positive alert. The troopers searched the car and uncovered an 1897 silver coin, which one of the troopers started to give to the other passenger, but which Timmons claimed as his. In addition, they found ammunition, a handgun, and a locked currency bag, which contained cocaine, six rare coins, and $80.00 in cash. The occupants of the car were then arrested.

The motion court below seized on language in Timmons quoting the Circuit Court for Cecil County, which, in denying appellant’s motion to suppress, stated that once the dog alerted “ ‘there was probable cause to do anything.’ ” Tim-mons, 114 Md.App. at 416 , 690 A.2d 530 . The motion court here interpreted our opinion as “seem[ing] to agree” with this statement by the Circuit Court for Cecil County. We said: Our independent constitutional appraisal of the record of the suppression hearing convinces us that the trial court’s findings of fact were not clearly erroneous and that its conclusions of law, based on those findings, were correct. ⁶⁸⁸ Trooper Nolan testified that he did not detain appellant until after the positive canine scan. The trooper indicated that, prior to the scan, he merely sought to determine whether appellant or the other passenger had a valid driver’s license so that the car could be driven away.

There was no suggestion that Nolan did anything more than request appellant’s cooperation in that matter. Nor was there any suggestion that appellant’s cooperation was not entirely voluntary. Although, for obvious safety reasons, appellant could not leave the scene, no seizure within the meaning of the Fourth Amendment took place prior to the scan. There is no dispute that, once the canine scan was conducted, Nolan had a reasonable articulable suspicion to detain appellant and the others and to search the vehicle.

Cf. Godson [, supra,] and Snow [, supra,] (both explaining that a positive alert by a certified drug-sniffing canine is sufficient to establish probable cause to search). Nor is there any dispute that, once the contraband was found inside the vehicle, the trooper had probable cause to make the arrests. 8 See generally Doering [, supra,] (“The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion”). As appellant was properly detained when he claimed ownership of the 1897 silver dollar and stated that he was a coin collector, and was properly arrested when he requested the wallet and keys that were on the back seat, the trial court properly denied the motion to suppress.

Timmons, 114 Md.App. at 417-18 , 690 A.2d 530 (emphasis supplied). This language does not suggest that the positive canine alert alone gave probable cause to arrest Timmons. Rather, it justified the search of the car, and it was the fruits of that subsequent search that formed the basis for the lawful ⁶⁸⁹ arrest of the occupants of the car. Timmons claimed various articles from inside the car, including his wallet, the coin, and some keys, although he later disclaimed ownership when one of the troopers realized that one of the keys opened up the currency bag.

The facts of Timmons are very different from the facts of this case. In Timmons , the officers found drugs inside the car before they touched the occupants of the vehicle. In fact, it does not appear as though the defendants in Timmons were even subjected to a Terry frisk prior to the search of the car. We believe the trial court reads Timmons too broadly.

D. Positive Canine Alert and Passenger Searches A search disclosed four jurisdictions that have addressed the issue of whether a positive canine alert in itself provides the police with probable cause to arrest passengers in an automobile. If a positive canine alert provides probable cause to effect a warrantless arrest, a search incident to that arrest is proper. 9 1. Florida In Woodbury v. State, 730 So.2d 354 (Fla.App.) (en banc), review denied, 743 So.2d 17 (Fla.1999), the car in which appellant Woodbury was a passenger was stopped, not for a traffic violation, but based on a description of the car given to police by the family of Linda Anderson, who they had reported as missing. Anderson’s family described her car and indicated that she might have loaned it to someone in exchange for drugs, as she had done in the past.

After stopping the car, the driver advised the police that it was, in fact, Anderson’s car but that she had Anderson’s authority to drive it. One officer ran a check on the driver’s license and the vehicle’s temporary tags, while another conducted a canine ⁶⁹⁰ scan of the car’s exterior. The dog made a positive alert. “The occupants of the vehicle, including Woodbury, were searched and cocaine was found on Woodbury.” Woodbury, 730 So.2d at 355 . The court found that the officer acted reasonably in stopping the vehicle to determine if it belonged to Ms. Anderson and, if it did, to see if she was safe.

The officer further had reason to check the driver’s license of the driver once she acknowledged that the car belonged to Ms. Anderson, and also to check the tag. The canine search was conducted within a reasonable time after the vehicle was stopped and the “dog alert” justified the search of the vehicle. Woodbury, 730 So.2d at 355 . With respect to Woodbury’s argument that there was no reasonable suspicion to justify a search of his person, the majority found the issue to be unpreserved and, therefore, waived on appeal.

Woodbury, 730 So.2d at 355 . One of the concurring judges and the dissenting judge, however, opined that the positive dog sniff did not provide probable cause to search Woodbury. In his concurring opinion, Judge Warren H. Cobb noted that there was no showing that the vehicle itself was searched. Woodbury, 730 So.2d at 355 (Cobb, J. concurring): Although Judge Cobb agreed that the issue was not preserved, he also stated that [t]he core question here should have been whether a dog alert on a vehicle, in and of itself, authorizes the arrest and search of all of the occupants of that vehicle.

The answer is no. See United States v. Di Re, 332 U.S. 581 , 68 S.Ct. 222 , 92 L.Ed. 210 (1948); Rogers v. State, 586 So.2d 1148 (Fla. 2d DCA 1991). Woodbury, 730 So.2d at 356 . Both Di Re and Rogers concerned the ability of police officers to extend searches of automobiles to searches of passengers. 10 ⁶⁹¹ Judge Cobb also provided the following “advice” to police faced with a situation like the one in Woodbury : Had the vehicle been searched, based on the dog alert, and drugs had been found therein, that may have supplied probable cause to arrest and search the person of one or more occupants, depending on the location of the drugs in the vehicle.

But it would not have automatically authorized the police to arrest and search the persons of all of the occupants absent a further dog alert on the individual occupants. If no drugs had been found in the vehicle, none of the occupants would have been subject to arrest and search absent an individual dog alert on that occupant’s person. Woodbury, 730 So.2d at 355 n. 1. Judge Charles M. Harris dissented from the opinion, stating that he believed the court should have reached the issue of whether the positive canine alert provided probable cause to search the passengers of the car, because Woodbury properly raised the issue below.

Woodbury, 730 So.2d at 358 (Harris, J. dissenting). Judge Harris stated: In our case, the police stopped a vehicle which they believed belonged to one who they had been informed used illegal drugs. A canine alert on the vehicle should not have come as a surprise. The alert did not raise a reasonable suspicion that Woodbury, neither the owner nor the driver of the vehicle, was engaged in criminal activity.

There should be some independent basis for searching the occu ⁶⁹² pants of a vehicle, particularly a non-owner or non-driver of the vehicle, detained because of an exterior canine alert. Admittedly, I have found no direct authority on this point (for or against it), but logic suggests its validity. All drugs concealed on an occupant of a vehicle must necessarily be located within the vehicle. However, even assuming the alert indicates the current, as opposed to past, presence of drags, all drugs located within the vehicle would not necessarily be concealed on an occupant or any particular occupant.

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 there-of____ If the facts justify it, there can be a constitutional basis for searching the passengers. There appears to be no reason why an independent canine sniff of the occupants themselves could not have been conducted during the vehicle search. The passengers have no expectation of privacy in the air space around them. If their body gives off an odor of illegal narcotics discemable by a trained dog