COURT REJECTS DRUG FRISKS

Dog Detecting Smell Ruled Insufficient Cause To Search Passengers;
Annapolis Case Overturned; Md. Attorney General Will Appeal Decision To
Highest State Court

In a ruling that may leave a legal gap in police drug searches, the state's
second-highest court said yesterday that police cannot frisk passengers for
drugs based on a police dog's detecting the smell of drugs in the car in
which they are riding.

Defense lawyers said the unanimous ruling by a three-judge panel of the
Court of Special Appeals offers some protection for passengers who
otherwise would be subject to body searches.

Gary E. Bair, chief of criminal appeals for the state attorney general's
office, said it also might mean that under many circumstances, police
couldn't touch a passenger holding drugs for others in a car.

Bair said his office will challenge the ruling and ask the Court of
Appeals, the state's highest court, to hear the case.

The ruling is of broad interest because the state's highest court has not
ruled on searching passengers after a police dog detects drugs in a car.
That court, however, has indicated that police can search and arrest a
driver if a dog signals that a car contains drugs.

Yesterday, the Court of Special Appeals said there must be "some link
between the passenger and the criminal conduct in order to provide probable
cause to either search or arrest the passenger."

The ruling erases the Anne Arundel County Circuit Court conviction of
Earmon Alvin Wallace Sr., 34, of Landover, who was convicted in 2000 of
possession with intent to distribute cocaine. Wallace was sentenced to 20
years in prison with all but five years suspended.

On July 9, 1999, he was one of four passengers in a car that an Annapolis
police officer stopped after it zipped through a red light on Forest Drive,
according to court documents. While the officer was checking license
information, an officer with a drug dog arrived. The dog smelled drugs in
the car; the car was not searched, but all five people in the car were.
Police said that they felt something on Wallace and, after he wiggled
around a bit, a plastic bag containing crack cocaine fell down his pants leg.

In pretrial motions, assistant public defender William Davis argued that
the search was not legal. If it was, he said, it also would be legal for
police to search every rider on a public trolley car if a drug dog signaled
the presence of drugs on it.

"All of us travel with other people in cars they own or control. It's of
concern that we would be searched and perhaps arrested as a consequence of
traveling with someone else," said Bradford C. Peabody, the assistant
public defender who successfully argued the case on appeal.

At least one similar case, also from Annapolis, is pending in Anne Arundel
County Circuit Court, and lawyers suspect there could be more in other
jurisdictions.

Anne Arundel County State's Attorney Frank R. Weathersbee said he had not
studied the ruling but that he wonders whether what the court was getting
at was more procedural than substantive.

Lawyers said the appeals court did not specify the procedures police could
have used to search a passenger under such circumstances, whether police
let the dog quit working too soon, whether police should have searched the
car or under what conditions the dog could have been invited to inspect
individual passengers.

Bair said his office believes that once the dog signaled that there were
drugs in the car, everyone in it was under suspicion and subject to search.