Drug search legal as probable cause did not dissipate

If you do not handle Fourth Amendment cases, you are probably unfamiliar with the notion that probable cause can "dissipate" over time. It can. This case -- a drug case out of Vermont -- raises that issue.

The case is United States v. Pabon, decided on September 11. The police had information that Pabon was smuggling drugs from Vermont to Connecticut by using rental cars at certain times of day. When they stopped him on the road for a traffic violation (after having trailed him), Pabon would not identify himself, and he gave vague answers as to his travel itinerary. The police searched the car and found nothing, and at the barracks, Pabon would not give a clear answer on whether he would consent to a search. The police then got a search warrant to more closely search the rental vehicle and to search Pabon's clothing and to x-ray his lower abdomen. The drug-sniffing dog got suspicious when it went into Pabon's cell and his vehicle. Meanwhile, at the hospital, where Pabon would be x-rayed, he went to use the bathroom, but was told he could not flush as the police suspected he had swallowed drug packets for later distribution. He tried to flush the toilet anyway, but the officers would not allow him to, though they found nothing incriminating in the toilet. The x-ray showed no drug packets. Later on, when Pabon returned to the hospital after hurting himself at the holding cell, the police got a warrant for a CT scan, which revealed materials in Pabon's body that suggested he was in fact packing drugs.After taking oral laxatives, Pabon passed all the drugs, nearly 100 grams of cocaine and heroin.

So what's it all about? Pabon does not really contest the police had probable cause to initially detain him. He does argue that the probable cause dissipated over time and that the search that produced the drugs was illegal. The Court of Appeals (Livingston, Cabranes and Pauly [D.J.]) disagrees and upholds Pabon's conviction. The police may not disregard facts tending to dissipate probable cause when confronted with such facts before the arrest is made. In this case, the Court considers for the first time "dissipation in the context of new information emerging after a warrantless arrest based on probable cause." Without squarely addressing that issue, however, the Court holds that "it is clear from an assessment of the record that police at all times possessed a reasonable basis for concluding that Pabon had committed -- indeed, was committing -- a crime."

The Court says things had remained suspicious even after Pabon was taken to the police station. While the police initially saw nothing in his body during the initial x-rays, doctors did note that x-rays provided limited insight into what's really going on.

In such circumstances, the probable cause to believe that Pabon was transporting narcotics had not dissipated, even taking into account the x‐ray examination results. By the time Pabon was discharged from the hospital, the state police not only had the information they had collected prior to Pabon’s arrest, but they were also privy to Pabon’s objectively suspicious behavior, canine alerts to places where Pabon was either sitting or had been held, and Dr. Rademacher’s explanation of the import of the x‐ray images and the relative effectiveness of that search method. The officers continued to have a reasonable basis for detaining Pabon, such that, even assuming arguendo that an obligation to release a suspect could, in some circumstances, arise, it did not do so here. Properly framed, the central question in this case is thus the one Gerstein and further elaborated on this view in his written assessment, Dr. Rademacher explained that he felt it was unnecessary because he had already conveyed the relevant information to Hatch. probable cause to detain.