PRESENT: All the Justices 

TRAVIS STACEY WHITEHEAD 

OPINION BY 

v. Record No. 082458 JUSTICE CYNTHIA D. KINSER 

 September 18, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal, we hold that a positive alert on a vehicle 

by a trained narcotics detection dog, combined with the 

subsequent fruitless searches of the vehicle, the driver, and 

two passengers, does not provide sufficient particularized 

probable cause to allow a search of the only remaining passenger 

in the vehicle. We will therefore reverse the judgment of the 

Court of Appeals holding that the search at issue did not 

violate the Fourth Amendment. 

FACTS AND PROCEEDINGS 

Around 3:00 P.M. on April 19, 2006, Officer Jay Quigley, 

who was employed by the City of Suffolk Police Department, 

stopped a vehicle for a traffic violation. The driver and three 

passengers occupied the stopped vehicle; Travis Stacey Whitehead 

was the "rear right passenger." Soon after the traffic stop, 

Officer J. B. Carr arrived on the scene with his certified 

narcotics detection dog, Xanto. Officer Carr and Xanto were 

qualified at trial, without objection, as a "drug detection 
unit" and Xanto was certified to detect the odors of marijuana, 

cocaine, heroin, and methamphetamine. 

While the driver and the three passengers were still inside 

the vehicle, Officer Carr walked Xanto around the vehicle, 

starting at the rear on the passenger's side and proceeding to 

the driver's door where Xanto alerted by sitting and waiting for 

his reward. Xanto is trained to sit if he detects the odor of 

narcotics at his head height or above, and to lie down when the 

odor is at ground level. Officer Carr relayed to Officer 

Quigley the fact that Xanto had alerted on the vehicle. Other 

than advising the occupants that Officer Quigley would search 

the vehicle, Officer Carr and Xanto did not take any further 

action with respect to the vehicle or its occupants. 

Upon learning from Officer Carr that Xanto had alerted on 

the vehicle, Officer Quigley directed the driver and the three 

passengers to exit the vehicle. He then searched the vehicle 

but found nothing. Officer Quigley next searched the vehicle's 

occupants, starting with the driver, then the front passenger, 

and finally the two individuals who were sitting in the back 

seat. The fourth and last person to be searched was Whitehead. 

Officer Quigley did not find any narcotics during his search of 

the first three occupants. However, when he searched Whitehead, 

Officer Quigley discovered what he described as "two syringes in 

[Whitehead's] right front pants pocket [and] in the same pocket 

2
was a paper towel [with] a beer bottle cap wrapped up in it." 

According to Officer Quigley, the bottle cap had "a burnt 

residue inside of it." Based on his training and experience, 

Officer Quigley believed that the residue was heroin. 

Subsequent forensic analysis of the bottle cap confirmed the 

residue was in fact heroin. 

Whitehead was subsequently indicted for possession of "a 

Schedule I or II controlled substance, in violation of" Code 

§ 18.2-250. As the case proceeded in the Circuit Court of the 

City of Suffolk, Whitehead filed a motion to suppress the 

evidence found on his person. At a hearing on the motion to 

suppress, Whitehead conceded that the alert by the narcotics 

detection dog on the vehicle gave the police officer probable 

cause to search the vehicle. However, Whitehead argued that the 

officer did not have probable cause to search the occupants of 

the vehicle "without some sort of individualized probable cause" 

as to each person. 

With regard to Xanto's alert on the vehicle, the following 

information was elicited during Officer Carr's cross-examination 

by Whitehead's attorney: 

Q. [Defense Counsel:] [Xanto has] been trained to 

[detect] the odor of narcotics? 

A. [Officer Carr:] Yes, sir. 

Q. Now, that doesn't always mean that there are 

narcotics strongly in the vehicle; is that correct? 

3
A. That's correct. 

Q. Sometimes there may be an old odor or something 

like that? 

A. Yes, sir. 

Q. But there is nothing found? 

A. Correct. 

. . . . 

Q. And when he searched the car - or the locations he 

alerts on, does that actually mean that that's the 

location of the drugs? 

A. No. That's where he gets the odor from. 

Q. Which means it's just where he's got the best 

airflow? 

A. Yes, sir. 

The circuit court denied Whitehead's motion to suppress, 

stating in its letter opinion: 

I conclude, first, that the alert by the drug dog 

constituted probable cause to search the vehicle. 

When that search yielded no drugs, and the searches of 

the driver and two other passengers likewise yielded 

no drugs, I conclude that the arresting officer then 

had particularized probable cause to search the 

defendant, whether he had been arrested or not. 

Whitehead subsequently entered a conditional guilty plea 

reserving his right to challenge on appeal the circuit court's 

denial of his motion to suppress. The circuit court found 

Whitehead guilty of the charged offense and sentenced him to 

five years incarceration, with three years and two months 

suspended. 

4
The Court of Appeals of Virginia, in a published opinion, 

held that the circuit court did not err in denying the motion to 

suppress and thus affirmed Whitehead's conviction. Whitehead v. 

Commonwealth, 53 Va. App. 1, 7, 668 S.E.2d 435, 438 (2008). The 

Court of Appeals concluded that, "[e]ven if we assume arguendo

that a trained dog's detection of the scent of drugs coming from 

an occupied car does not, of itself, provide sufficiently 

particularized probable cause to search each of the car's 

occupants for drugs, . . . on these facts . . . the search of 

Whitehead's person did not violate the Fourth Amendment." Id.

at 5, 668 S.E.2d at 436-37. Continuing, the Court of Appeals 

stated: 

In this case, the officers had probable cause to 

search the car following Xanto's alert. And, by the 

time the officers searched Whitehead, they had 

probable cause to search his person through the 

process of elimination. Each fruitless search - of 

the car and of the other occupants of the car - 

increased the likelihood that Whitehead possessed the 

odorous contraband detected by Xanto's trained nose. 

While it may have been more a result of luck rather 

than a profound understanding of the Fourth Amendment, 

we hold that by the time the officers searched 

Whitehead they possessed the necessary probable cause 

to justify the search. 

Id. at 7, 668 S.E.2d at 438 (footnote omitted).1

 1

 The Court of Appeals also concluded that Whitehead lacked 

standing to challenge the searches of the first, second, and 

third occupants of the vehicle and therefore refused to address 

Whitehead's argument that the court should ignore those previous 

fruitless searches in deciding whether probable cause existed to 

search him. The Court of Appeals stated that it "assess[es] the 

5
We granted Whitehead this appeal. In his sole assignment 

of error, Whitehead asserts the Court of Appeals erred in 

holding that the search of his person did not violate the Fourth 

Amendment. 

DISCUSSION 

On appeal, Whitehead does not challenge the lawfulness of 

the traffic stop or the fact that the police officer had 

probable cause to search the vehicle based on the positive alert 

by the narcotics detection dog. See Jones v. Commonwealth, 277 

Va. 171, 180, 670 S.E.2d 727, 732 (2009) (a positive alert from 

a narcotics detection dog establishes probable cause to search a 

vehicle). Thus, the only issue in this case is whether, after 

the search of the vehicle and three of its four occupants 

revealed no contraband, the police officer then had probable 

cause to search Whitehead.2

The appellate standard of review applicable in this case is 

well settled: 

 

existence of probable cause at the time the search [is] 

conducted." Whitehead, 53 Va. App. at 7 n.3, 668 S.E.2d at 438 

n.3. 

2

 As Whitehead correctly notes, a search of his person was 

justified only as a search incident to a custodial arrest. See

United States v. Robinson, 414 U.S. 218, 236 (1973) (search 

incident to a custodial arrest does not violate the Fourth 

Amendment). Thus, the actual question is whether probable cause 

existed to arrest Whitehead. See United States v. Di Re, 332 

U.S. 581, 587 (1948) (determining whether defendant was lawfully 

arrested since ensuing search was permissible if probable cause 

to arrest existed). 

6
In reviewing the denial of a motion to suppress 

evidence claiming a violation of a person's Fourth 

Amendment rights, we consider the facts in the light 

most favorable to the Commonwealth, the prevailing 

party at trial. The burden is on the defendant to show 

that the trial court committed reversible error. We 

are bound by the trial court's factual findings unless 

those findings are plainly wrong or unsupported by the 

evidence. We will review the trial court's application 

of the law de novo. 

Malbrough v. Commonwealth, 275 Va. 163, 168-69, 655 S.E.2d 

1, 3 (2008); accord Murphy v. Commonwealth, 264 Va. 568, 

573, 570 S.E.2d 836, 838 (2002). 

Relying on the rationale of the Court of Appeals, the 

Commonwealth argues that by the time the police officer searched 

Whitehead, the officer had the necessary probable cause to 

justify that search. Whitehead, however, asserts the positive 

alert by the narcotics detection dog provided probable cause to 

search only the vehicle and that there were no facts 

particularized as to him to establish probable cause that he was 

engaged in criminal activity. Our analysis of the issue before 

us is guided by the decisions of the Supreme Court of the United 

States in United States v. Di Re, 332 U.S. 581 (1948), Ybarra v. 

Illinois, 444 U.S. 85 (1979), and Maryland v. Pringle, 540 U.S. 

366 (2003), and this Court's decision in El-Amin v. 

Commonwealth, 269 Va. 15, 607 S.E.2d 115 (2005). 

In Di Re, an informant named Reed told an investigator that 

he was to buy "counterfeit gasoline ration coupons" from an 

7
individual named Buttitta at a particular location. 332 U.S. at 

583. The investigator and a detective followed Buttitta's 

vehicle until it arrived at the appointed place. Id. The 

officers proceeded to the vehicle and found Reed, the only 

occupant of the rear seat, holding two gasoline ration coupons, 

which later proved to be counterfeit. Id. Reed stated he had 

obtained the coupons from Buttitta, who was sitting in the 

driver's seat. Id. Michael Di Re was sitting in the front seat 

beside Buttitta. Id. All three were taken into custody, 

frisked for weapons, and transported to the police station. Id. 

At the police station, Di Re complied with a request to empty 

the contents of his pockets. Id. Upon doing so, Di Re pulled 

out two gasoline and several fuel oil ration coupons. Id. Di 

Re was subsequently "booked" and another search at that time 

revealed one hundred gas ration coupons. All the coupons in Di 

Re's possession were counterfeit. Id.

The Government argued the search of Di Re was "justified as 

incident to a lawful arrest" or, in the alternative, that the 

"search of his person was justified as incident to search of a 

vehicle reasonably believed to be carrying contraband." Id. at 

583-84. The Supreme Court initially considered the second 

ground and assumed without deciding, since the vehicle was not 

searched, that there was probable cause to search the vehicle. 

The Court then held: 

8
We see no ground for expanding the ruling in 

[Carroll v. United States, 267 U.S. 132 (1925)] to 

justify this arrest and search as incident to the 

search of a car. We are not convinced that a person, 

by mere presence in a suspected car, loses immunities 

from search of his person to which he would otherwise 

be entitled. 

Id. at 586-87. 

Since the Government also defended the search on the basis 

that it was incident to a lawful arrest, the Court then 

determined whether there was probable cause to arrest Di Re and 

search his person incident to that arrest. Noting the 

Government conceded that the only person who committed a 

possible misdemeanor in the open presence of the officer was 

Reed, and that the police had acquired previous information as 

to Buttitta's selling coupons to Reed but had no such 

information as to Di Re, the Court concluded that Di Re's 

presence was not enough to justify the arrest. Id. at 592. The 

Court also rejected the Government's reliance on a conspiracy to 

show probable cause to arrest Di Re. Id. at 593. The Court 

stated that 

whatever suspicion might result from Di Re's mere 

presence seems diminished, if not destroyed, when 

Reed, present as the informer, pointed out Buttitta, 

and Buttitta only, as a guilty party. No reason 

appears to doubt that Reed willingly would involve Di 

Re if the nature of the transaction permitted. Yet he 

did not incriminate Di Re. Any inference that 

everyone on the scene of a crime is a party to it must 

disappear if the Government informer singles out the 

guilty person. 

9
Id. at 594. 

In Ybarra, several police officers executed a warrant 

authorizing the search of a particular tavern and its bartender. 

444 U.S. at 88. Upon entering the tavern, the officers informed 

all those present that they were going to conduct a "cursory 

search for weapons." Id. One of the officers proceeded to pat 

down each of the customers, including Ventura Ybarra. Id. 

Although the officer felt what he described as "a cigarette pack 

with objects in it," he did not remove the pack from Ybarra's 

pocket. Id. Instead, he proceeded to pat down other customers. 

Id. Several minutes later, the officer returned to Ybarra and 

frisked him once again, relocating and retrieving the cigarette 

pack. Id. at 89. Inside the pack the officer found six foil 

packets containing a substance that later proved to be heroin. 

Id. The trial court denied Ybarra's motion to suppress the 

evidence found during the search of his person because the 

search was justified under an Illinois statute.3 Id.

The Supreme Court, in reviewing the case, first noted that 

the complaint for the search warrant did not allege that persons 

illegally purchasing drugs frequented the bar, nor did it even 

 3

 "An Illinois statute authorize[d] law enforcement officers 

to detain and search any person found on premises being searched 

pursuant to a search warrant, to protect themselves from attack 

or to prevent the disposal or concealment of anything described 

in the warrant." Ybarra, 444 U.S. at 87. 

10
so much as mention the patrons of the tavern. Id. at 90. The 

Court concluded that "[n]ot only was probable cause to search 

Ybarra absent at the time the warrant was issued, it was still 

absent when the police executed the warrant" because the police 

"had no reason to believe that he had committed, was committing, 

or was about to commit any offense under state or federal law." 

Id. at 90-91. According to the Court, "Ybarra made no gestures 

indicative of criminal conduct, made no movements that might 

suggest an attempt to conceal contraband, and said nothing of a 

suspicious nature to the police officers." Id. at 91. Thus, 

the Court found that "the agents knew nothing in particular 

about Ybarra, except that he was present, along with several 

other customers, in a public tavern at a time when the police 

had reason to believe that the bartender would have heroin for 

sale." Id.

The Court further explained: 

It is true that the police possessed a warrant 

based on probable cause to search the tavern in which 

Ybarra happened to be at the time the warrant was 

executed. But, a person's mere propinquity to others 

independently suspected of criminal activity does not, 

without more, give rise to probable cause to search 

that person. Where the standard is probable cause, a 

search or seizure of a person must be supported by 

probable cause particularized with respect to that 

person. This requirement cannot be undercut or 

avoided by simply pointing to the fact that 

coincidentally there exists probable cause to search 

or seize another or to search the premises where the 

person may happen to be. The Fourth and Fourteenth 

11
Amendments protect the legitimate expectations of 

privacy of persons, not places. 

Each patron who walked into [the tavern] was 

clothed with constitutional protection against an 

unreasonable search or an unreasonable seizure. That 

individualized protection was separate and distinct 

from [that] protection possessed by the proprietor of 

the tavern or by [the bartender]. Although the search 

warrant, issued upon probable cause, gave the officers 

authority to search the premises and to search [the 

bartender], it gave them no authority whatever to 

invade the constitutional protections possessed 

individually by the tavern's customers. 

Id. at 91-92 (footnotes, citations, and internal quotation marks 

omitted). 

The Court also rejected the State's argument that the first 

pat down of Ybarra, permissible as a Terry frisk, provided 

justification for the second search that uncovered the heroin. 

The Court held, "[t]he initial frisk of Ybarra was simply not 

supported by a reasonable belief that he was armed and presently 

dangerous, a belief which this Court has invariably held must 

form the predicate to a pat down of a person for weapons." Id.

at 92-93 (footnote omitted). 

In Pringle, a police officer stopped a vehicle for 

speeding. 540 U.S. at 368. Three occupants were in the 

vehicle: the driver, who was also the owner of the vehicle; 

Pringle, the front-seat passenger; and the back-seat passenger. 

Id. When the driver opened the glove compartment to retrieve 

his registration, the officer observed a large amount of rolled12
up cash. Id. During a consensual search of the vehicle, the 

police officer retrieved $763 from the glove compartment and 

"five plastic glassine baggies containing cocaine from behind 

the back-seat armrest." Id. After none of the occupants of the 

vehicle would provide information about the ownership of the 

contraband, the officer arrested all three individuals and 

transported them to the police station. Id. at 368-69. 

Pringle, while in custody and after waiving his Miranda

rights, admitted that the cocaine belonged to him and claimed 

the other occupants did not know about the drugs. Id. at 369. 

The trial court denied Pringle's motion to suppress these 

statements as the fruit of an illegal arrest, holding that the 

officer had probable cause to arrest Pringle. Id. On review 

before the Supreme Court, it was uncontested that the officer, 

upon recovering the five plastic baggies containing suspected 

cocaine, had probable cause to believe a felony had been 

committed. Id. at 370. Thus, "[t]he sole question [was] 

whether the officer had probable cause to believe that Pringle 

committed that crime." Id. In deciding that question, the 

Court stated: 

We think it an entirely reasonable inference from 

these facts that any or all three of the occupants had 

knowledge of, and exercised dominion and control over, 

the cocaine. Thus a reasonable officer could conclude 

that there was probable cause to believe Pringle 

committed the crime of possession of cocaine, either 

solely or jointly. 

13
Id. at 372. 

The Court distinguished its holding in Ybarra, explaining: 

Pringle and his two companions were in a relatively 

small automobile, not a public tavern. [We have] noted 

that "a car passenger – unlike the unwitting tavern 

patron in Ybarra – will often be engaged in a common 

enterprise with the driver, and have the same interest 

in concealing the fruits or the evidence of their 

wrongdoing." Here we think it was reasonable for the 

officer to infer a common enterprise among the three 

men. The quantity of drugs and cash in the car 

indicated the likelihood of drug dealing, an 

enterprise to which a dealer would be unlikely to 

admit an innocent person with the potential to furnish 

evidence against him. 

Id. at 373 (quoting Wyoming v. Houghton, 526 U.S. 295, 304-05 

(1999) (citations omitted)). The Court also noted that, unlike 

the situation in Di Re when the informant singled out the guilty 

person, none of the three men singled out any one of them with 

respect to the ownership of the cocaine or money. Id. at 374. 

Finally, in this Court's decision in El-Amin, we upheld the 

constitutionality of a frisk for weapons based on an officer's 

reasonable and particularized suspicion that El-Amin was armed 

and dangerous. 269 Va. at 23, 607 S.E.2d at 119. There, police 

officers received an anonymous tip that six young black males 

were at a specified location smoking marijuana. Id. at 18, 607 

S.E.2d at 116. Two officers responded, and although they 

observed no signs of criminal activity, they approached four 

young black males walking near the identified location and asked 

to speak with them. Id. Two of the men walked over to the 

14
police officers, but El-Amin and the fourth individual remained 

further back and separate from each other. Id. Two other 

police officers then arrived on the scene, and one of them, 

Officer Williams, "immediately observed the fourth individual 

turn away and shove his hands into his waistband." Id. Officer 

Williams directed the fourth individual to turn around and face 

him, but that individual did not comply. Id. So, Officer 

Williams conducted a pat down search of the fourth individual. 

Id. When the officer felt what he believed was a gun, he yelled 

"gun." Id. Officer Williams found a pellet gun in the fourth 

individual's waistband. Id.

Upon hearing Officer Williams yell "gun," another officer 

conducted a pat down search of El-Amin and found a .38-caliber 

revolver. Id. The officer then arrested El-Amin for illegal 

possession of a firearm as a juvenile, searched him incident to 

the arrest, and found marijuana and cocaine in his pockets. Id.

El-Amin contended that the officer had no particularized 

suspicion to believe he was engaged in criminal activity or that 

he was a danger to the officer and, therefore, "the search and 

seizure, based solely on El-Amin's association or physical 

proximity to the other three youths, was unconstitutional." Id.

at 19-20, 607 S.E.2d at 117. The Commonwealth argued that the 

legitimate concern for officer safety justified the pat down at 

issue and that, under those circumstances, particularized 

15
suspicion was not required. Id. at 21, 607 S.E.2d at 118. The 

Commonwealth urged the Court to adopt a rule in such cases that 

"approves the search of the companion of a person validly 

detained based solely on the status of companion." Id.

This Court declined to adopt such a per se rule. Id.

Nevertheless, we concluded that the officer's concern for his 

and the other officers' safety was warranted because the 

encounter took place in the evening in a high crime area and the 

four individuals appeared to be in a group. Id. at 22, 607 

S.E.2d at 118. Continuing, we held: 

[U]pon learning that the fourth individual had a hand 

gun, [the police officer] was warranted in inferring 

that the inherent tendency toward violence 

demonstrated by one group member carrying a gun raised 

reasonable and particularized safety concerns as to 

other members of the same group. The circumstances in 

this case support the officer's objectively reasonable 

apprehension that, upon discovery of a weapon on the 

person of one member of the group, the other members 

of the group might also be armed and dangerous. 

Id. at 23, 607 S.E.2d at 119. 

In reaching this conclusion, we emphasized 

that El-Amin's companionship status alone was [not] 

sufficient to authorize a pat down search [and] that 

an officer's generalized concern for his safety alone 

would [not] validate such a search under the Fourth 

Amendment. The totality of the facts in this case – 

place, time, discovery of a weapon, and group activity 

– validates the pat down search under the principles 

utilized by the Supreme Court when considering Fourth 

Amendment challenges to searches and seizures. 

Id. We also distinguished Ybarra, stating: 

16
Ybarra is not dispositive here because in Ybarra the 

officers did not consider the patron and bartender as 

part of a group, the officers had no reason to believe 

that they were subject to any particular danger from 

any of the patrons in the bar, and simply told all 

patrons that they were conducting a cursory search for 

weapons. 

Id. at 22 n.5, 607 S.E.2d at 118 n.5 (internal quotation marks 

omitted). 

The United States Supreme Court's decisions in Di Re and 

Ybarra demonstrate that probable cause to arrest and/or search 

an individual must be particularized to that individual; mere 

proximity to criminal activity alone is insufficient to 

establish probable cause. However, as illustrated by the 

decision in Pringle, evidence showing a common criminal 

enterprise can provide the necessary link between criminal 

activity and an individual so as to establish probable cause 

sufficiently particularized to that individual. Although ElAmin involved a frisk for weapons based on the lesser standard 

of reasonable articulable suspicion, see Bass v. Commonwealth, 

259 Va. 470, 475, 525 S.E.2d 921, 923 (2000) (recognizing that 

the standard of "reasonable suspicion" requires a lesser showing 

than the standard of "probable cause"), this Court nevertheless 

required something more than El-Amin's mere companionship 

status. Instead, we considered the totality of the 

circumstances, i.e., "place, time, discovery of a weapon, and 

group activity," and concluded that sufficient particularized 

17
safety concerns existed as to El-Amin and the other members of 

the group to justify the frisk for weapons. El-Amin, 269 Va. at 

23, 607 S.E.2d at 119. 

In the case at bar, viewing the evidence in the light most 

favorable to the Commonwealth, we hold that probable cause to 

search Whitehead was absent. After the positive alert by the 

trained narcotics detection dog, Officer Quigley unquestionably 

had probable cause to search the vehicle. See Jones, 277 Va. at 

180, 670 S.E.2d at 732. However, without something more, the 

positive alert did not provide probable cause sufficiently 

particularized as to Whitehead to allow the search of his 

person. In contrast to the situation in Pringle, the 

Commonwealth presented no evidence, other than Whitehead's 

status as a passenger in the vehicle, indicating that Whitehead 

and the other passengers were involved in any common enterprise 

involving criminal activity. There also was no evidence 

indicating Whitehead individually was committing, had committed, 

or was about to commit a criminal offense. See Di Re, 332 U.S. 

at 594 (informant singled out guilty individual). 

The Commonwealth, however, argues that Xanto's positive 

alert indicated that contraband was present somewhere, and after 

no contraband was found in the vehicle or on the other three 

occupants, that somewhere had to be on Whitehead's person. 

Based on the evidence in this record, we are unwilling to draw 

18
such a conclusion. While the fruitless searches of the vehicle 

and the other occupants increased the likelihood that the 

contraband detected by Xanto was on Whitehead's person, it also 

increased the likelihood that the dog alerted to the odor of 

contraband no longer present in the vehicle. Officer Carr 

testified at the suppression hearing that a positive alert by 

Xanto did not necessarily mean that drugs were currently present 

in the automobile; rather, Xanto could have alerted to an "old 

odor." 

The positive alert by Xanto and the subsequent fruitless 

searches of the vehicle and three of its occupants may have 

created a strong suspicion that contraband was present on 

Whitehead's person; however, probable cause requires more than a 

strong suspicion. See Jones, 277 Va. at 178, 670 S.E.2d at 731 

("[P]robable cause exists when 'there is a fair probability that 

contraband or evidence of a crime will be found in a particular 

place.'") (quoting United States v. Grubbs, 547 U.S. 90, 95 

(2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))). 

Based on the record in this case, the positive alert and the 

fruitless searches were not sufficient to establish probable 

cause particularized as to Whitehead that he was concealing 

contraband on his person. Evidence of other factors such as 

those present in Pringle or El-Amin was needed to establish the 

requisite probable cause. See State v. Voichahoske, 709 N.W.2d 

19
659, 671 (Neb. 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

also State v. Gibson, 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, 740 N.E.2d 839, 843 (Ill. App. Ct. 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, 812 A.2d 291, 302-

03 (Md. 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). But see United States v. Anchondo, 156 F.3d 1043, 

1045 (10th Cir. 1998) (holding that a positive canine alert 

20
provides probable cause to arrest the driver of the vehicle and 

finding that a fruitless search of the vehicle made it more 

likely that the contraband was on the bodies of the driver and 

passenger); State v. Ofori, 906 A.2d 1089, 1099 (Md. Ct. Spec. 

App. 2006) ("Because of the close association between contraband 

in a vehicle and the driver of (or other passenger in) the 

vehicle, either finding the drugs in the vehicle, as in Pringle, 

or probable cause to believe that they are in the vehicle, as in 

this case, necessarily implicates the driver and passengers."). 

CONCLUSION 

For these reasons, we conclude the search of Whitehead's 

person violated his Fourth Amendment rights. The Court of 

Appeals erred by holding otherwise. Because the evidence seized 

from Whitehead should have been suppressed, there would be 

insufficient evidence to sustain a conviction on retrial. 

Accordingly, we will reverse the judgment of the Court of 

Appeals, vacate Whitehead's conviction, and dismiss the 

indictment. See Jackson v. Commonwealth, 267 Va. 666, 681, 594 

S.E.2d 595, 603 (2004). 

Reversed and dismissed. 

21