RICHARD JAMES CADY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Cady, a passenger in a vehicle, was searched by police after a drug-sniffing dog alerted to the passenger seat. The court reversed his conviction, holding that the dog's alert to the seat where Cady had been sitting did not establish probable cause to search his person, as mere proximity to drugs or residual odor on a seat is insufficient for such a search.
The court held that the police lacked probable cause to search Cady. While the traffic stop was valid, mere proximity to contraband found in a vehicle does not establish probable cause to search a passenger. Additionally, a drug-sniffing dog's alert to a seat does not provide probable cause to search a person who had been sitting in that seat, as this only establishes a residual odor rather than possession.
[1] A traffic stop is lawful if an officer observes a traffic violation, even if the officer is investigating unrelated criminal activity.
[2] Mere proximity to contraband found within a vehicle is insufficient to establish constructive possession by a passenger.
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Join FLexlaw to unlock all legal intelligence“Mere proximity to contraband is insufficient to establish constructive possession.”
Establishes the legal standard that being near drugs does not provide probable cause to search a person.
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Join FLexlaw to unlock all legal intelligenceOfficer Jordan stopped a pickup truck driven by Michael Ross for an improper lane change in an intersection. Ross was under narcotics investigation. A…
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FULMER, Judge.
Richard Cady appeals the denial of his motion to suppress the drugs seized from him during a traffic stop. Because the officer lacked probable cause to search Cady, we reverse.
Cady was a passenger in a pickup truck driven by Michael Ross. Ross was the target of a narcotics investigation by the Cape Coral police. Detective Richardson told Officer Jordan to watch Ross’s vehicle and to stop it if the officer observed a traffic violation. Shortly thereafter, Officer Jordan stopped the vehicle for making an improper lane change in an intersection. Officer McDonald, a K-9 officer, was called to the scene and assisted Officer Jordan in getting Ross and Cady out of the vehicle. Detective Richardson also arrived at the scene. Officer McDonald then led the drug-sniffing dog around the outside of the vehicle, and it alerted to the driver and passenger’s door. The dog was put inside the vehicle, and it alerted to the driver’s floor mat, the passenger’s seat, and the center console between the seats.
Officer McDonald looked under the driver’s floor mat and found a small bag of cocaine. He also checked the passenger side and the center console area but found no other drugs. Officer Jordan then arrested Ross. Detective Richardson searched Cady, found cocaine in Cady’s pocket, and arrested him. The detective explained that he searched Cady because the dog had alerted to the passenger seat of the truck, which the detective concluded indicated that the drugs were still on Cady.
Cady argues that there was no probable cause for the stop of the vehicle because there is no statutory authority for a stop based on a lane change in an intersection. This argument was not made before the trial judge. Instead, Cady argued that the stop was pretextual because the officers were looking for a reason to stop the driver; however, Cady did not dispute that the driver made an improper lane change or that such was a traffic violation. Accordingly, Cady has not preserved this argument.
Cady next argues that there was no probable cause to search him based on the cocaine found under the driver’s floor mat because he was not in actual or constructive possession of that cocaine. The officers had no information regarding Cady’s involvement in drug activity, and the State did not present any evidence that would support a finding of constructive possession. Mere proximity to contraband is insufficient to establish constructive possession. Thus, we agree that the fact that Cady was a passenger in a vehicle where drugs were found did not give the police probable cause to search Cady. See Rennard v. State, 675 So. 2d 1006, 1007 (Fla. 2d DCA 1996); Rogers v. State, 586 So. 2d 1148, 1151-52 (Fla. 2d DCA 1991).
Cady also argues that the fact that the dog alerted to the passenger seat after Cady had exited the vehicle did not give the police probable cause to believe that Cady had drugs on his person. We agree, based on this court’s opinion in Bryant v. State, 779 So. 2d 464 (Fla. 2d DCA 2000). In Bryant, a deputy conducted a search of Neil Bryant after a drug-sniffing dog alerted to the driver’s door and the driver’s seat of the vehicle Bryant had been driving. No drugs were found inside the vehicle. This court concluded that while the dog alert provided probable cause to search the vehicle, the deputy did not have probable cause to search Bryant under the theory that Bryant had left a residual odor of drugs on the seat.
Pursuant to Bryant, the police did not have probable cause to search Cady. Accordingly, we reverse the order of conviction and remand for the trial court to grant the motion to suppress.
Reversed and remanded.
ALTENBERND and DAVIS, JJ., concur.
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Elvershon Williams v. State, 911 So. 2d 861 (Fla. 1st DCA 2005)…s because the fact that the police dog alerted to his vehicle, in and of itself, did not provide the officers with probable cause to arrest him and search his person. We agree and, therefore, reverse the convictions and sentences. See Cady v. State, 817 So. 2d 948, 949 (Fla. 2d DCA 2002) (holding that the police did not have probable cause to search the defendant simply because a dog alerted to the vehicle that the defendant had been a passenger in); Bryant v. State, 779 So. 2d 464, 464-65 (Fla. 2d DCA 2000)…
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Perry v. State, 916 So. 2d 835 (Fla. 2d DCA 2005)…pursue this option to develop additional evidence. Based' upon controlling precedent, these circumstances were insufficient to support the probable cause necessary to arrest Mr. Perry for constructive possession of paraphernalia. See Cady v. State, 817 So. 2d 948 (Fla. 2d DCA 2002); McGowan v. State, 778 So. 2d 354 (Fla. 2d DCA 2001); Zandate v. State, 779 So. 2d 476 (Fla. 2d DCA 2000); Rennard v. State, 675 So. 2d 1006 (Fla. 2d DCA 1996); Rogers v. State, 586 So. 2d 1148 (Fla. 2d DCA 1991); see also Walker…
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State v. Griffin, 949 So. 2d 309 (Fla. 1st DCA 2007)…nder Williams, we must find that the dog alert provided probable cause to search Appellee’s car, but not to search her person. 911 So. 2d at 861. This court’s opinion in Williams cites two Second District cases to support its holding: Cady v. State, 817 So. 2d 948 (Fla. 2d DCA 2002), and Bryant v. State, 779 So. 2d 464 (Fla. 2d DCA 2000); however, the Second District recently noted that Prin-gle “may have effectively overruled our precedent involving circumstances similar to those presented here.” Perry v. St…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rogers v. State, 586 So. 2d 1148 (Fla. 2d DCA 1991)
- Rennard v. State, 675 So. 2d 1006 (Fla. 2d DCA 1996)
- Bryant v. State, 779 So. 2d 464 (Fla. 2d DCA 2000)