Indiana Court: Finding Drugs On One Person Means Everyone On A Bus Can Be Searched

A whole new level of constitutional wtf-ness has emerged from the Indiana state Appeals Court. Here’s how John Wesley Hall sums it up on FourthAmendment.com:

If you’re riding a bus and drugs are found on one, are all subject to search. The answer can’t be yes, but it is here.

Exactly. The answer cannot be “yes.” That’s insanity. Especially considering the facts of this case, which begin with Deputy Wade Wallace of the LaPorte County Sheriff’s Office pulling over a bus because of an alleged traffic violation.

Wallace “observed” a Greyhound bus “cross left of center” and “veer over the fog line” while he patrolled Interstate 80. Of course, this was a pretense. Wallace didn’t really care about the moving violation. He just wanted to search the bus. But the law of the land says any pretext is a good pretext as long as you don’t abandon the pretext too quickly.

In this case, it would seem the pretext was abandoned almost immediately. From the decision [PDF]:

Deputy Wallace explained the reason for the stop, learned the bus had seventeen passengers, and collected the driver’s license and proof of insurance. He also asked for consent to search the bus.

How would searching the bus further the point of the stop, which was the fog line violation Wallace cited mere seconds before turning his attention to the 17 people who weren’t driving the bus he had just pulled over? Well, the short and correct answer is that the requested search had nothing to do with the alleged violation, therefore without any reasonable suspicion being immediately present, his request should have been rejected. And, even if it was granted (as it was here), no passenger should have been subjected to a search because… THEY WEREN’T DRIVING THE BUS.

So, Deputy Wallace started dicking around, running the license and warrant check and “readying his warning book.” Then he called another deputy to the scene for supposed “officer safety reasons.” Completely not coincidentally, the backup he called for was a K-9 unit featuring Deputy John Samuelson and his drug dog, Bosco.

Deputy Samuelson — someone who apparently has never had the dubious pleasure of traveling via Greyhound bus — decided that people exiting the bus to smoke cigarettes was somehow suspicious. (As someone who has ridden these buses more than a handful of times — and as a lifelong smoker — I can tell you literally any time a bus comes to a momentary stop, every smoker heads out immediately to inhale as much nicotine as they can. This is not suspicious. This is addiction and there is no shortage of smokers on any given Greyhound bus.)

So, 10 to 12 minutes after the traffic stop began, Deputy Wallace called in Deputy Samuelson. Was this traffic stop illegally extended under the Rodriguez ruling? I mean, I would think so. The court, however, says there’s nothing wrong with this.

Within minutes of his arrival, Deputy Samuelson conducted an open-air dog sniff by walking Bosco around the exterior of the bus. Bosco soon “alerted” toward the front of the luggage compartment, signaling, through a distinctive set of behaviors, he smelled drugs there. Bosco was right: while searching a pink suitcase, police found “approximately 15 pounds of vacuum-sealed marijuana.”

That’s more “minutes” on top of the 10-12 minutes expended by Wallace slow-walking the warning he eventually handed to the bus driver at the end of this string of constitutional violations. There was no “suspicion,” reasonable or not, to justify running the drug dog around the bus, much less the more invasive searches that followed. There was only the fog line violation and smokers exiting the bus to smoke.

From there, the two deputies searched everyone on the bus and received consent to search a couple of stowed bags. They came across a handful of guns and — using this as leverage to search even more bags — they found some drugs in Norvell Dunem’s on-board luggage.

Dunem challenged the search. The lower court said the deputies did nothing wrong. And that’s the same thing the higher court says, even though it definitely appears a whole bunch of unsupported searches took place before the officers came across stuff they felt justified searching everybody and everything. The original traffic stop was always an afterthought. A warning was issued more than a hour after the stop was initiated.

Somehow, a drug dog’s alert on a bus’s exterior storage justifies a search of several passengers and their bags. Never mind the fact that the pretense for the stop had been abandoned within the 10-12 minutes it took the other deputy (and his drug dog) to arrive. Never mind the other inconvenient facts — like the fact that you’re a passenger in a vehicle doesn’t make you automatically subject to a search just because cops find something on the driver or another passenger.

The court says the stop wasn’t unlawfully extended. It makes this assertion by saying the drug dog alerted almost immediately after the other deputy arrived and took his drug dog for a walk around the bus. It also points out that while this was happening, Deputy Wallace was still “filling out the written warning.” It says nothing about the 10-12 minutes it took for the deputy to start writing this warning — something he apparently didn’t feel like doing until after the drug dog had arrived on the scene.

Then the court claims the “automobile exception” provides for warrantless searches of passengers and their belongings. But that’s simply not true. While it can be used in some situations to justify warrantless searches of vehicles, it has not been extended to cover passengers and their personal property unless there’s reasonable suspicion to do so. And it certainly can’t be used to create a constitutional blank check that covers seventeen passengers and their personal belongings.

But that’s what the court says here: a dog alerting at an exterior luggage compartment gives officers probable cause to search everyone and everything contained in the vehicle, even if it’s 17 people and their belongings. It’s an insane take on the Fourth Amendment, made even more insane by the refusal to probe more deeply into the first deputy’s seeming inability to start writing a traffic warning until a drug dog had arrived at the scene and started sniffing.

This is a bad decision. Hopefully, it will go up one more rung to the state’s top court and get reversed. Allowing it to stand means allowing officers to search every passenger and their belongings just because the driver (allegedly) swerved a little too far out of their lane.