Article from: www.thenewspaper.com/news/35/3574.asp

9/1/2011

North Dakota Supreme Court: Drivers Not Searched Under Auto Exception
North Dakota Supreme Court gives Drivers and passengers more protection from search under the Fourth Amendment.

Just because police can search an automobile does not mean they can search its driver, according to an August 15 ruling by the North Dakota Supreme Court.

The finding was applied in the case of Kevin James Gefroh, who drove away from the On the Rocks bar in Minot just before 10pm on June 17, 2010. Officer Craig Sandusky, a Ward County Narcotics Task Force member, called on Officer David Chapman to come up with a reason to stop Gefroh. Chapman claimed he saw an Gefroh make an illegal left-hand turn and initiated a traffic stop that allowed him to run his drug-sniffing canine around Gefroh's pickup truck. The dog alerted on the passenger-side door, so the officers ordered Gefroh out of the vehicle so that he could be searched. During a patdown, police encountered a "soft object" in Gefroh's pocket that turned out to be cocaine.

Gefroh argued that the search was illegal. The Fourth Amendment requires that the government obtain a warrant before searching a person, his house or his papers. Courts over time have created a number of exceptions to this rule, including permission for law enforcement officers to search a vehicle for contraband without a warrant if they can establish probable cause to believe the car contains objects connected with criminal activity.

The US Supreme Court ruled as far back as 1948 that, "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." The North Dakota high court applied the reasoning to conclude the search of Gefroh's car was legitimate, but the search of his person was not.

"We hold the automobile exception did not justify the warrantless search of Gefroh's person," Justice Carol Ronning Kapsner wrote for the majority. "The dog-sniff of the vehicle established probable cause the vehicle contained a controlled substance, but the pockets of the clothes Gefroh was wearing were not 'containers.' The state also argued that Gefroh, as the driver of the vehicle, was part of the contents of the vehicle. The state offers no support for its arguments that would render Gefroh a container or contents of the vehicle, rather than a person entitled to 'heightened protection' against searches of his person."

Justice Dale V. Sandstrom filed a dissent arguing that police had probable cause to believe that the "soft object" in Gefroh's pocket could be drugs.

"On the basis of the drug dog alert, there was probable cause to believe there were drugs present in a very finite universe that included Gefroh's person," Sandstrom wrote. "During a proper pat-down search for weapons, when the officer found a soft object in Gefroh's pocket, he had probable cause to believe the object was drugs and was entitled to remove it... The officer's reasonable suspicion, based on the totality of the circumstances preceding the pat-down, including Gefroh's actions and the drug dog alert, made it apparent the object was drugs."

The majority view prevailed and the evidence against Gefroh was suppressed. A copy of the decision is available in a 70k PDF file at the source link below.

Source: North Dakota v. Gefroh (Supreme Court of North Dakota, 8/15/2011)

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