Is It Legal to Search a Passenger In a Car During Police Stop ?

Can a police officer search a passenger in a car ? In United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948), appellant was a passenger in a car with two other men. See 332 U.S. at 583. In the back seat was a police informant who was holding counterfeit gasoline ration coupons. See id. He told officers that he had received the coupons from the driver. See id. Police then took all three men into custody and searched them, and an envelope containing a hundred gasoline ration coupons was found concealed on Di Re. See id. The Court held that Di Re's mere presence in the car was insufficient to give officers probable cause to arrest and search him. See id. at 594. In Leday v. State, 3 S.W.3d 667, 671 (Tex. App.--Beaumont 1999, pet. ref'd), appellant was a passenger in a vehicle stopped for speeding. See 3 S.W.3d at 670. When approached by police, the driver voluntarily relinquished a bag containing about 124 grams of crack cocaine, whereupon both the driver and Leday were arrested and taken to the constable's office. See id. A search of Leday's shoes revealed about 28 more grams of crack cocaine. See id. The court held that the State lacked probable cause to arrest Leday merely because the driver possessed a large amount of crack cocaine and that the warrantless search was therefore unjustified. See Leday, 3 S.W.3d at 673. In Leday and Di Re police tried to attach probable cause to the defendant by virtue of his proximity to another person found in possession of contraband. In Leday, the driver was in possession of the drugs that the officer claimed gave him probable cause to arrest and search both driver and passenger. See Leday, 3 S.W.3d at 670. In Di Re, the informant in the back seat possessed the contraband and named the driver as the party who had sold the coupons to him. See 332 U.S. at 583. The Supreme Court implicitly acknowledged that there may be an inference that everyone on the scene of a crime is a party to it, holding that any such inference "must disappear if the Government informer singles out the guilty person." Id. at 594.