Pat Down Search of Defendant Outside Vehicle Passes Constitutional Muster

State v. Duke, 05-0556 (Iowa Ct. App. May 24, 2006)

Duke was driving a van without plates when he was stopped by two Des Moines officers. Duke's passenger Cipale was observed making the ever popular furtive movements. Duke produced his license, insurance card, proof of ownership and a valid auto dealer's license plate.
When the second officer approached the passenger's side of the van he observed a police scanner on top of a duffel bag. The officer also knew Cipale to be involved in drugs, as he'd arrested Cipale previously for possession.

The driver and passenger were patted down for weapons and Duke had a knife on his person. While one officer was holding the occupants the other proceeded to search the console area where Cipale had been observed making furtive movements. A K-9 officer arrived at the scene on his own initiative, although the searching office had been about to request the same. The dog alerted on objects that proved to be marijuana, drug paraphernalia, methamphetamine, cash, a knife and electronic equipment.

Duke's lawyer filed a motion to suppress evidence far past the deadline for filing pretrial motions. Duke chose to go forward with a bench trial rather than have his motion to suppress dismissed. Duke lost the motion to suppress and was convicted on drug and weapons charges.

Duke argued that the patdown search and the search of the van were unreasonable. The court held that the passenger's furtive movements, the presence of a police scanner and the passenger's status as a known felon triggered officer concern for their safety, and that the search of the console area was reasonable.

The court also concluded that having a drug dog sniff the perimeter of a vehicle lawfully stopped in a public place does not of itself constitute a search.

All that is required in such a case is that the dog sniff be conducted in a reasonable amount of time after the stop and that the stop is not unduly prolonged without a sufficient basis.