At first glance, the case against Kevin Gefroh seems cut and dried. He’s a known drug offender and the Ward County Narcotics Task Force had information that he had received a supply of drugs for sale. They followed him, had his car pulled over for a technical violation (too many registration tabs) and then brought in a drug dog to do some sniffing. In North Dakota, if a drug dog alerts on your vehicle, that is probable cause to do a search of the car.
The car was searched and a bag with marijuana residue was found. Officers then patted down Mr. Gefroh and found several small packages of cocaine. Done deal, right? Wrong.
In court, Mr. Gefroh’s lawyer appealed the discovery of cocaine on the grounds that the police do not have the right to search a person who is in a car, just the car. In other words, the fact that a drug dog alerted while the defendant was still in the car didn’t give the police grounds to search his person.
Importantly, the police do have the right (and obligation) to pat you down for weapons. But the permission only allows a surface pat down for hard objects that might be concealed. It’s for officer safety and is an exception to the right to privacy rule. However, small cocaine packets are soft and, even though officers felt them, they had no basis to think they were weapons. Without arresting Mr. Gefroh first, they shouldn’t have searched his person.
The evidence against him – the cocaine seized – was thrown out on these grounds. The ND Supreme Court further stated that while a drug dog could establish probable cause to search a vehicle and containers inside that vehicle, the driver’s pockets didn’t count as containers in this sense.
Notably, if you give permission for a search, the search will be valid. So, if you are concealing drugs, watch out for the seemingly innocent question, “Do you mind if I check your pockets?”
You can read the entire ruling here.
