State v. Smith: Dog Alerts and Particularized Suspicion

Last August, the court of appeals in State v. Smith, ___ N.C. App. ___, 729 S.E.2d 120, temp. stay granted, __ N.C. __, 731 S.E.2d 179 (mem.) (2012), decided an issue of first-impression related to a drug dog alert and the reasonableness of an ensuing Fourth Amendment search. Since we haven’t yet blogged about Smith, which is doubtless of interest to folks interested in North Carolina criminal law and is fresh in my mind as a result of my recent preparations for a fall criminal law case update, I thought I’d pen a few words about the case. The defendant in Smith and two other men were standing outside a 1972 Chevrolet in a gas station parking lot around 11 p.m. on September 11, 2010, while the driver of the car, Leach, pumped gas.  The defendant stood next to the right front passenger door and another passenger, McCray, stood by a rear passenger door.  Officer McDonald of the Winston-Salem Police Department approached the car—not to ask the question on my mind – “Who is your mechanic?”―but instead to tell Leach that the music playing inside the car was too loud.  McCray apologized, reached into the vehicle, and turned the music down.  Officer McDonald asked for Leach’s driver’s license and the vehicle registration, returned to his patrol car, and requested an additional unit.  Two other officers arrived and asked the passengers for identification.  Officer McDonald checked the defendant’s criminal history and found “‘an extensive local record which included numerous drug offenses,’ including [...]