While this pat[-]down search was being undertaken, the canine alerted, resulting immediately in the cuffing of the defendant and the more intrusive search finding the item in question upon the person of the defendant. Defendant asserts that under the recent Fourth District case of People v. Fondia, [ 317 Ill. App. 3d 966, 740 N.E.2d 839 (2000),] that Officer Cox lacked authority to search the defendant's watch pocket during this traffic stop. In the Fondia case, the Fourth District made clear that its holding was `limited to the facts of record and turns on the absence of any indicia of suspicion, particular to the defendant.
2. Illinois In People v. Fondia, 317 Ill. App.3d 966, 251 Ill. Dec. 553, 740 N.E.2d 839 (2000) (Cook, J., dissenting), Fondia had been a passenger in a car driven by Sharon Russell. Officers David Shaffer and Douglas Gallagher each spoke with Russell and the other passenger, Wayne Aikens, and then proceeded to "conduct computer inquiries and warrant checks" on all three of the car's occupants.
Or, in the alternative, that the mere proximity to incriminating evidence or to an offender is not enough for a finding of probable cause for arrest generally. In People v. Fondia, 317 Ill. App.3d 966, 251 Ill. Dec. 553, 740 N.E.2d 839 (Ill.App. 2000), the Illinois Appellate Court considered a case with facts similar to the case sub judice. There, after a lawful traffic stop, an officer requested a police canine unit while he was conducting computer inquires and a warrants check.
Applying Dunn to the facts of this case, when the drug dog detected the odor of drugs inside Morton's vehicle, particularly at the driver's side door, Hord was provided with probable cause to search the vehicle pursuant to the automobile exception which extended to a search of Morton under the facts of this case. Although Morton cites State v. Wallace, 372 Md. 137, 812 A.2d 291 (2002), and People v. Fondia, 317 Ill.App.3d 966, 251 Ill.Dec. 553, 740 N.E.2d 839 (2000), for the proposition that our sister jurisdictions that have addressed this exact issue have not permitted searches of a vehicle's occupants, we do not believe that these cited cases stand for the proposition that Morton asserts. In Wallace, supra, at 295-296, the state contended that a positive canine alert provided the police with probable cause to search all passengers in an automobile but the Maryland Court of Appeals rejected this argument.
For this reason, Drake is inapposite. People v. Fondia, 317 Ill. App.3d 966 (2000), another case relied upon by defendant, is also inapposite. In Fondia, a drug-sniffing dog alerted at the driver's car door.
¶ 34 In 2000, this court held “that a police canine alert of a car's exterior indicating the presence of a controlled substance within the car does not, without more, provide the police with probable cause to search the persons of the car's occupants.” People v. Fondia, 317 Ill.App.3d 966, 969, 251 Ill.Dec. 553, 740 N.E.2d 839, 841 (2000). However, this court stressed its “holding is limited to the facts of record and turns on the absence of any indicia of suspicion particular to defendant.
¶ 67 Moreover, defendant's assertion that no reasonable suspicion existed because the canine failed to alert to the package is not persuasive. To support his assertion, defendant cites this court's holding in People v. Fondia, 317 Ill.App.3d 966, 970, 251 Ill.Dec. 553, 740 N.E.2d 839, 842 (2000), for the proposition that the failure of a canine to alert to the presence of narcotics automatically dispels reasonable suspicion. In Fondia, however, the dog's original alert to the car was the only reason for police to suspect that any individual occupant possessed drugs.
" (citing Houghton , 526 U.S. at 303 & n.1, 119 S.Ct. 1297 )); Cady v. State , 817 So. 2d 948, 949 (Fla. Dist. Ct. App. 2002) (finding that dog's alert to the passenger seat after the defendant had exited the vehicle did not give the police probable cause to believe the defendant had drugs on his person); Gibson , 108 P.3d at 432 ("The dog's detection of the odor of drugs did not automatically justify probable cause to arrest Gibson unless there were additional factors to connect that odor with him."); People v. Fondia , 317 Ill.App.3d 966, 251 Ill.Dec. 553, 740 N.E.2d 839, 841 (2000) (agreeing in a pre- Pringle case with the defendant's argument "that a police canine alert of a car's exterior indicating the presence of a controlled substance within the car does not, without more, provide the police with probable cause to search the persons of the car's occupants"); State v. Anderson , 281 Kan. 896, 136 P.3d 406, 415 (2006) ("Although this court has held that a drug dog's alert is sufficient to constitute probable cause to search a vehicle, we do not agree with the [ United States v. ] Anchondo [, 156 F.3d 1043, 1045 (10th Cir. 1998),] panel's decision that such an alert followed by an unsuccessful search of the vehicle gives law enforcement license to search or arrest the vehicle's driver." (citation omitted)); State v. Smith , 222 N.C.App. 253, 729 S.E.2d 120, 126 (2012) ("The fact that defendant was formerly a passenger in a motor vehicle as to which a drug dog alerted, and a subsequent search of the vehicle found no contraband, is not sufficient, without probab
SeeState v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659, 671 (2006) (finding that a positive canine alert on a vehicle and subsequent fruitless search of the vehicle, combined with evidence of complicity in concealing the identity of the driver of the vehicle, provided probable cause particularized to the passenger that he was concealing drugs on his person); see alsoState v. Gibson, 141 Idaho 277, 108 P.3d 424, 430 (Idaho Ct.App.2005) (" Probable cause to believe that drugs are located in an automobile may not automatically constitute probable cause to arrest all persons located in the vehicle; some additional factors would generally have to be present, indicating to the officer that those persons possessed the contraband." ); People v. Fondia, 317 Ill.App.3d 966, 251 Ill.Dec. 553, 740 N.E.2d 839, 843 (2000) (" ‘ A canine alert on the exterior of the vehicle supports the general proposition that drugs may well be located within the vehicle, but not the more specific proposition that the drugs are concealed on a particular occupant thereof.’ " (quoting Woodbury v. Florida, 730 So.2d 354, 359 (Fla.Dist.Ct.App.1999) (Harris, J., dissenting))); State v. Wallace, 372 Md. 137, 812 A.2d 291, 302-03 (2002) (holding that a positive canine alert on a vehicle, without any other indicia of possession of contraband specifically related to the passenger, is insufficient to establish probable cause to search a non-owner, non-driver of the vehicle).
And several of our sister jurisdictions have declined to adopt a similar holding when presented with similar facts. See State v. Wallace, 372 Md. 137, 155-157, 812 A.2d 291 (2002) (drug dog alerted twice on car containing defendant, others; defendant removed from car; defendant searched; cocaine found; arrest followed; court holds dog's general alert on car did not give officers probable cause to search passengers); State v. Kelly, 2001 WL 1561543, at *3-4 (Ohio App. December 1, 2001) (ruling canine alert to presence of drugs in car gave police probable cause to search interior of car, but not occupants; general canine alert not specific to defendant); People v. Fondia, 317 Ill. App. 3d 966, 969, 740 N.E.2d 839 (2000) (drug dog alerted on car containing defendants; officer removed defendant from car, searched him, found drug paraphernalia; arrested him; canine alert on car's exterior does not, without more, provide probable cause to search persons of car's occupants). While we are aware that Tenth Circuit precedent may be persuasive, this court is not bound to follow it. See, e.g., Wilkins v. Tourtellott, 42 Kan. 176, 197, 22 Pac. 11 (1889).