Should I Stay or Should I Go?

“Should I stay or should I go now?
If I go there will be trouble,
and if I stay it will be double” -The Clash
In Orlando, many drug cases come from basic traffic stops. For example, the Orlando Police Department stop a car for failing to properly signal a lane change, and then the officer notices the smell of cannabis. The car is searched, and voila–drugs are found. When the drugs are found in common areas of a car occupied by several people, the police have a difficult time deciding who should be charged with possession of the drugs (a situation called “constructive possession”). But the issue we’re going to tackle today involves the rights of passenger who wants to leave the scene while the traffic citation is being issued–can you do that? Must a passenger wait around for a car to be searched? Let’s take a look at one court’s handling of just such an issue.

The case is State v. Tanner, 915 So.2d 762 (Fla. 2nd DCA 2005). The Polk County Sheriff’s Department stopped a car for expired tag. The car was driven by Robert Holshue, and Ms. Tanner was the passenger. A drug sniffing K9 unit arrived soon thereafter, and the officer demanded that the driver and Ms. Tanner exit the vehicle so that the drug dog could sniff. Tanner grabbed her purse and began to leave, but the officers demanded that she leave her purse in the vehicle. Reluctantly, she did so. The drug dog “alerted” for drugs, and a search of Tanner’s purse revealed illegal drugs and she was arrested for drug possession. The trial court threw out the drug possession case, finding that the officers had no legal right to detain Tanner’s purse.

The prosecutors appealed this dismissal. Basically, the appeals court agreed with the trial court, and upheld the suppression of the drugs in this case due to the illegal seizure of Tanner’s purse. But, I think they went a step further, holding that the officers really had no right to even detain Tanner herself, “[She] did nothing to warrant her individual detention…nor was there an independent ‘reasonable suspicion’ that her purse contained contraband.” Id. At 764. While it is true that the officers had every right to allow a dog sniff for illegal drugs (though they must do this within a reasonable amount of time, and they did so in this case), “[t]hat alone, however, did not authorize the deputies to deprive Ms. Tanner of her purse and, under the circumstances, detain her.” Id.

So there you have it. The appeals court found that this passenger was illegally detained. But, from a practical standpoint, what are the chances that police will allow a passenger to simply walk away from a traffic stop? Seems like a no win situation here, but under the Clash’s analysis, it’s double trouble to stay….