State v. Pellicci , 133 N.H. 523 ( 1990 )

JOHNSON, J.

The defendant, Thomas Pellicci, appeals an order of the Superior Court (Mohl, J.) denying his motions to dismiss the charges against him or, alternatively, to suppress evidence. He argues that his stop, search, and ultimate arrest by the Portsmouth Police Department violated his rights against unreasonable search and seizure under part I, article 19 of the New Hampshire Constitution. For reasons that follow, I would affirm.

The superior court denied Pellicci’s motions based on the following findings of fact, which remain unchallenged on appeal. Beginning in late June and continuing through late August 1987, the Portsmouth Police Department conducted an investigation of controlled substance sales in the Portsmouth area, concentrating its efforts on detecting such sales at the Club Excalibur, a Portsmouth drinking establishment. During July and August, a team of officers conducting surveillance at the club noted a suspicious pattern in the behavior of defendant Pellicci, who was then a club patron. On four or five documented occasions, Pellicci left the club with another patron, usually a female, and drove with that patron on precisely the same route from the club to either a municipal parking lot next to the BankEast Building or a neighboring parking lot at the South playground. In each instance, Pellicci and his passenger remained parked in one of the two lots for fifteen to twenty minutes, without exiting the vehicle, and then returned to the club. On one of these occasions, the passenger appeared to the officers to hand Pellicci money. On another, a member of the surveillance team saw a male, seated in the front passenger’s seat, bend over twice at the waist, in a manner which, in his experience, was characteristic of persons inhaling cocaine.

On August 26,1987, following the observations described above, a confidential source informed Portsmouth Detective Steven Demo that Pellicci sold cocaine from his vehicle on a regular basis, but that, fearing the presence of undercover officers, he refused to make sales in the Club Excalibur itself. According to Detective Demo’s testimony, this informant also supplied information leading to the August 26th arrest of another person on a drug-related charge.

During the afternoon of August 27th, Detective Demo contacted Patrolman Michael Ronchi, who cares for and handles the Portsmouth Police Department’s drug detection dog, and asked that he and Patrolman James Prendergast take up a position along the route Pellicci customarily followed between the club and the earlier-described parking lots. Detective Demo testified that he ordered the patrolmen to stop Pellicci’s vehicle for investigation by the drug detection dog if Pellicci left the club with another patron and embarked on this customary route.

At 7:15 that evening, Pellicci did leave the club, with a female patron, and took the route he had followed to the parking lots on previous occasions. When he passed the spot where Patrolmen Ronchi and Prendergast were waiting, they pulled out behind him, and he stopped almost immediately. It is unclear whether the officers turned on their blue lights before Pellicci pulled over, or only after he had stopped and was exiting his vehicle. Patrolman Prendergast instructed Pellicci, who was leaving the area on foot, to return to his position behind the wheel and then requested his identification, while Patrolman Ronchi accompanied the drug detection dog around the outside of the vehicle. During their circuit, the dog “alerted” Patrolman Ronchi to the possible presence of controlled substances at the space between the passenger side door of the vehicle and the vehicle’s frame, and at one of the wheel wells.

Following the dog’s alert, Patrolman Ronchi directed Pellicci to exit the vehicle and performed a pat search of his clothing, uncovering a cigarette box in his shirt pocket. Ronchi testified that, in his experience, such boxes are often used to carry controlled substances. On opening this box, Ronchi discovered seven paper packets containing a white powder that appeared to him to be cocaine. The box also held three hand-rolled cigarettes. The patrolmen then arrested Pellicci and took him to the Portsmouth police station where, during booking, they also discovered among his possessions a vial containing a small amount of white powder. Later laboratory analysis confirmed that the paper packets and vial contained cocaine and that marijuana was present in the three cigarettes. On the basis of this evidence, a Rockingham County Grand Jury indicted Pellicci for the felonies of possession of cocaine and possession of cocaine with intent to sell, see RSA 318-B:2,1 (Supp. 1989), and the Rockingham County Attorney filed two informations charging him with the misdemeanors of transportation and possession of marijuana, see id.

At the parties’ request, the superior court consolidated a hearing on Pellicci’s alternative motions to dismiss charges or suppress evidence with a jury-waived bench trial. It subsequently denied both motions and found Pellicci guilty of each of the four crimes with which he was charged. In denying the motions, the superior court determined, in response to arguments to the contrary, that: (1) Portsmouth police officers possessed facts sufficient to justify an investigative stop of Pellicci’s vehicle for the purpose of allowing the drug detection dog to sniff its exterior; and (2) the dog’s alert gave the officers probable cause to search Pellicci’s person. The court further denied Pellicci’s request to reconsider its decision on the motions, and this appeal followed.

Pellicci challenges the superior court’s determinations in several respects on appeal. He argues first that his detention was not a mere investigative stop, see Terry v. Ohio, 392 U.S. 1 (1968), which officers may conduct on the basis of a reasonable and articulable suspicion that the person detained has committed or is about to commit a crime, but was a full-blown seizure, demanding both probable cause to suspect criminal activity and a warrant, or circumstances sufficient to satisfy one of the established exceptions to the warrant requirement. Second, Pellicci says, if the initial seizure was properly characterized as an investigative stop, officers nevertheless lacked the reasonable and articulable suspicion necessary to justify such a stop. Third, even conceding appropriate justification, use of the drug detection dog was itself a search exceeding the bounds of the brief and very limited intrusion authorized, and therefore required probable cause. Finally, Pellicci contends, because the State failed to produce sufficient evidence of the drug detection dog’s reliability, the superior court erred in finding that the dog’s alert gave the officer probable cause to search his person. He argues that any of these violations requires the suppression of all evidence seized as a consequence, and that the resulting lack of evidence warrants dismissal of the charges against him.

The State responds that Pellicci’s initial detention both was supported by a reasonable and articulable suspicion and was sufficiently brief and unintrusive to be classified appropriately as an investigative stop. Furthermore, it says, so far from being a search requiring probable cause, the use of the drug detection dog was not a search at all within the meaning of the State and Federal Constitutions. Finally, it claims, evidence as to the dog’s reliability was clearly sufficient to support a determination of probable cause to search Pellicci’s person, and all of the evidence in question was thus admissible at trial.

An officer who stops a motor vehicle seizes both vehicle and occupants for purposes of part I, article 19 of the New Hampshire Constitution. See State v. Parker, 127 N.H. 525, 529, 503 A.2d 809, 811 (1985) (addressing State and Federal Constitutions); State v. Oxley, 127 N.H. 407, 410, 503 A.2d 756, 759 (1985) (addressing Federal Constitution). Under carefully defined circumstances, however, we have interpreted our constitution, like its federal counterpart, to permit certain investigative stops on the basis of less than probable cause because they are substantially less intrusive than an arrest. See State v. Brodeur, 126 N.H. 411, 415, 493 A.2d 1134, 1137-38 (1985) (adopting the rule established in Terry v. Ohio, 392 U.S. at 26-27 (1968), that under some circumstances police may detain a person for investigatory purposes on grounds not amounting to probable cause to arrest).

In determining whether the grounds for a particular stop meet constitutional requirements, we balance the governmental interest that allegedly justified the stop against the extent of the intrusion on protected interests. Parker, supra at 530, 503 A.2d at 812. To this end, we require the investigating officer to have undertaken the stop on the basis of a reasonable suspicion that the person detained had committed, was committing, or was about to commit a crime, State v. Maya, 126 N.H. 590, 595, 493 A.2d 1139, 1143 (1985), and we insure that the adequacy of this suspicion is the subject of neutral scrutiny by requiring the officer to ‘“be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’” Brodeur supra (quoting Terry, supra at 21). We further guarantee that the seizure is sufficiently unintrusive by permitting detentions on the basis of less than probable cause only where ‘“[t]he scope of the detention [is] carefully tailored to its underlying justification ... [is] temporary and last[s] no longer than is necessary to effectuate the purpose of the stop.’” Maya supra (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). Thus the officer may detain the suspect briefly in order to ask “‘a moderate number of questions to determine ... identity and to try to obtain information confirming or dispelling [his] suspicions.’” Parker, supra at 531, 503 A.2d at 812-13 (quoting Berkemer v. McCarty, 468 U.S. 420, 439 (1984)). Where he has reason to believe that the suspect is armed and dangerous, the officer may also insure his own safety or that of others by conducting a limited frisk of outer garments for weapons. See Terry, 392 U.S. at 27. However, “subsequent decisions [after Terry] have demonstrated that the exception for limited intrusions is not confined to the ‘stop and frisk’ situation presented in Terry.” United States v. Whitehead, 849 F.2d 849, 856 (4th Cir. 1988) (citations omitted). “Any departure from the probable-cause requirement, however, ‘rests on a balancing of the . . . nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’” Id. (quoting United States v. Place, 462 U.S. 696, 703 (1983)).

Pellicci’s initial arguments challenge the constitutionality of his investigative stop by charging that the stop was not based on a reasonable and articulable suspicion that he had been, was, or was about to be engaged in criminal activity. In making these arguments, Pellicci emphasizes that the suspicious circumstances on which the State relies were as consistent with innocent as with criminal activity. He further argues that because officers planned the so-called stop in advance, with the intention of employing the drug detection dog to uncover controlled substances, it was not a response to a rapidly unfolding situation presenting the immediate threat of crime, as the State Constitution requires.

To determine the sufficiency of the officers’ suspicion, an appellate court must consider the facts they articulated, not in isolation, but in light of all the surrounding circumstances, Parker, 127 N.H. at 529-30, 503 A.2d at 811-12, keeping in mind, in particular, that “a trained officer may make inferences and draw conclusions from conduct which may seem unremarkable to an untrained observer.” Parker, supra at 531, 503 A.2d at 812.

To review briefly, the officers based their decision to make the stop on the fact that on four or five documented occasions, Pellicci, accompanied by a passenger, had left the Club Excalibur and taken an established route to one of two secluded parking lots, where they had remained parked for no more than twenty minutes before returning to the club. On one of these occasions, investigating officers saw what they believed to be money changing hands, and on another they observed behavior by the passenger which, in their experience, was consistent -with cocaine inhalation. In addition, on the day before officers stopped Pellicci, the Portsmouth Police Department received a tip from an anonymous informant that Pellicci regularly sold drugs from his car. Information from the same informant resulted in an arrest on drug-related charges just prior to the stop in question.

Although some of these activities may appear innocent in isolation, when taken together and considered in light of the reasonable inferences that officers who are experienced in investigating drug transactions may draw, they suggest that Pellicci made his trips from the club to the parking lots in order to make drug sales. In combination with the anonymous tip, these articulated facts gave officers reasonable grounds for suspecting that, if Pellicci left the Club Excalibur and followed the route he had been observed to take on previous occasions, he would be carrying controlled substances in anticipation of immediate sale.

This review of the facts on which the officers based their stop further makes clear that, although they planned the stop in advance, its basis was their suspicion that Pellicci was committing one crime (possession and transportation of a controlled substance) and about to commit another (sale of a controlled substance), not their mere desire to acquire evidence of criminal activity. Patrolmen Ronchi and Prendergast did not stop Pellicci at some arbitrarily chosen moment; they stopped him when they had a reasonable and articulable suspicion, based on the evidence they had gathered, that he was carrying controlled substances whose sale was imminent. Cf. United States v. Cortez, 449 U.S. 411, 420 (1981) (brief investigative stop for questioning was held to be appropriate where officers planned that “if, on the night upon which they believed [the suspect] was likely to travel, sometime between 2 a.m. and 6 a.m., a large enclosed vehicle was seen to make an east-west-east round trip to and from a deserted point (milepost 122) on a deserted road (Highway 86), [they] would stop the vehicle on the return trip”). In light of the facts articulated, it is fair to conclude that the investigative stop was supported by a reasonable suspicion and was not a mere pretext to gather evidence without first obtaining a warrant.

We next consider whether use of the drug detection dog to sniff the exterior of Pellicci’s vehicle for controlled substances went beyond the allowable scope of a limited investigative stop and was thus a full-fledged search, requiring probable cause. The State urges us to answer this question, which we have never addressed in the context of part I, article 19, by adopting the analysis the United States Supreme Court recently employed in United States v. Place, 462 U.S. 696, for purposes of the fourth amendment. However, as Pellicci correctly argues, we have held that our Constitution may be more protective of individual rights than the Federal Constitution, see State v. Ball, 124 N.H. 226, 231-32, 471 A.2d 347, 350-51 (1983).

In Place, police officers decided to subject luggage to a canine sniff after stopping its owner in LaGuardia Airport based on their reasonable and articulable suspicion that he was transporting narcotics. The Court ultimately found seizure of the luggage for ninety minutes, in anticipation of the dog’s arrival, too intrusive to be justified on the basis of anything less than probable cause, and held for the defendant. Place, supra at 707-10. However, it added that, under the circumstances, the sniff itself was not a search: “We conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a ‘search’ within the meaning of the Fourth Amendment.” Place, supra at 707.

The Court provided justification for this conclusion, which as Justice Blackmun noted in concurrence was unnecessary to resolution of the case, Place, 462 U.S. at 723-24, by pointing to several characteristics of the canine sniff that distinguish it from those investigative methods properly classified as searches. In particular, it noted, a canine sniff of luggage is less intrusive than the typical search because it does not involve opening the luggage and discloses nothing about the contents beyond the presence or absence of controlled substances. Place, supra at 707. Unlike the typical search, then, the sniff provides only limited information about the item investigated, and avoids the “embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.” Place supra. “In these respects,” the Court concluded, “the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.” Place supra. Given this language, the majority of courts have since concluded that a canine sniff was not a search and therefore was not subject to fourth amendment restrictions.

Part I, article 19 of our Constitution accords

“[e]very subject... a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.”

There is no question that part I, article 19 gave Pellicci a right to be secure from unreasonable searches of his vehicle. See, e.g., Ball, 124 N.H. at 234-37, 471 A.2d at 352-54 (part I, article 19 prevented officer from reaching into defendant’s car to seize hand-rolled cigarette absent probable cause to believe it contained controlled substances). What must be considered here is (1) whether the canine sniff of the vehicle’s exterior was a search in constitutional terms, and (2) if it was, what requirements are imposed by part I, article 19 to insure that it was reasonable.

Unlike the United States Supreme Court, we have neither adopted nor rejected the reasonable expectation of privacy analysis for purposes of determining what constitutes an invasion of protected interests under part I, article 19. See State v. Valenzuela, 130 N.H. 175, 180-81, 536 A.2d 1252, 1256-57 (1987), cert. denied, 485 U.S. 1008 (1988). However, in considering what constitutes a search for purposes of our Constitution, we have stated that ‘“[a] search ordinarily implies a quest by an officer of the law, a prying into hidden places for that which is concealed.’” State v. McGann, 124 N.H. 101, 104, 467 A.2d 571, 573 (1983) (quoting State v. Coolidge, 106 N.H. 186, 191, 208 A.2d 322, 326 (1965), rev’d on other grounds sub nom. Coolidge v. New Hampshire, 403 U.S. 443, reh’g denied, 404 U.S. 874 (1971)).

Employing a trained canine to sniff a person’s private vehicle in order to determine whether controlled substances are concealed inside is certainly a search in these terms. The drug detection dog discerned something not otherwise apparent to the officers through their own senses, aided or unaided, and advised them of what the dog had discovered by means the officers could perceive. The very purpose of bringing the dog to the vehicle was to have it detect any contraband that might be hidden inside. The sniff, in short, was a prying by officers into the contents of Pellicci’s possession, which, concealed as they were from public view, could not have been evident to the officers before the prying began. See McGann supra. However limited the information it provided, I believe that it is proper to categorize this dog sniff as a search, and it was therefore subject to the strictures of part I, article 19.1 note that nearly all of the commentators have also categorized a dog sniff as a search. 1 W. LaFave, Search and Seizure § 2.2(f), at 366 n.189, 367 n.202 (2d ed. 1987).

The fact that the sniff was a search, however, does not determine whether or not it was reasonable under the circumstances. As already noted, a canine sniff differs from the traditional search in that it discloses only limited information and likely entails less embarrassment or inconvenience. Other courts and commentators who agree that a canine sniff is indeed a search have further held that its limited nature justifies its employment, under appropriate circumstances, on the basis of a “reasonable” or “founded” suspicion rather than probable cause. See, e.g., Commonwealth v. Johnston, 530 A.2d 74, 79-80 (Pa. 1987) (decided under Pennsylvania Constitution); Pooley v. State, 705 P.2d 1293, 1310-11 (Alaska App. 1985) (decided under Alaska Constitution); United States v. Place, 462 U.S. 696, 723 (Blackmun, J., concurring) (suggesting Terry standard might appropriately be applied to canine sniffs). LaFave, in his treatise on search and seizure, states:

“In Terry v. Ohio, the Court upheld a limited warrantless search made upon less than probable cause ‘by balancing the need to search [or seize] against the invasion which the search [or seizure] entails,’ and thus a similar approach might be taken as to the kind of search [dog sniff] here under discussion. Although there are sound reasons for not employing too generously ‘a graduated model of the fourth amendment,’ the notion that searches by use of dogs trained to detect narcotics or explosives is a lesser intrusion subject to lesser Fourth Amendment restrictions is sound. This is because this particular investigative technique is a distinct police practice which quite obviously is much less intrusive than other searches.”

1 W. LaFave, supra at 375.

The LaFave analysis comports with our own recognition that, because of the limited intrusion involved, officers may effect an investigative stop, consistent with part I, article 19, on the basis of a reasonable and articulable suspicion of imminent criminal activity, provided the intrusion on protected interests is sufficiently small and the legitimate State interest sufficiently great. The specific circumstances surrounding the canine sniff in this case likewise warrant application of the reasonable suspicion standard. Here, officers made an otherwise permissible investigatory stop of Pellicci’s vehicle based on a reasonable and articulable suspicion that it contained controlled substances which he was en route to sell. During this stop, officers effected a brief canine sniff of the vehicle based on the further reasonable and articulable suspicion that it contained controlled substances. This sniff apparently lasted no longer than the questioning that was permissible and involved no seizure of property other than the one necessarily accompanying the stop. Under these circumstances, the intrusion on protected interests, which disclosed only the presence or absence of controlled substances, was sufficiently limited, and the legitimate State interest sufficiently great, to justify the search on the basis of less than probable cause.

I would therefore hold that where, as here, a canine sniff: (1) is part of an investigative stop based on a reasonable and articulable suspicion of imminent criminal activity involving controlled substances; (2) is employed to search a vehicle; (3) in no way increases the time necessary for the moderate questioning our prior cases allow; and (4) is itself based on a reasonable and articulable suspicion that the property searched contains controlled substances, it satisfies the requirements of part I, article 19.

I note that the difficulty in deciding whether a dog sniff falls within federal or State constitutional protections against unreasonable searches was presaged by the case of United States v. Beale before the Ninth Circuit Court of Appeals. In Beale I, a unanimous court held that a dog sniff of a person’s luggage to detect drugs “is a Fourth Amendment intrusion, albeit a limited one that may be conducted without a warrant and which may be based on an officer’s ‘founded’ or ‘articulable’ suspicion rather than probable cause.” United States v. Beale, 674 F.2d 1327, 1335 (9th Cir. 1982) (emphasis in original). The case was appealed; Place was shortly thereafter decided. The United States Supreme Court then vacated the circuit court decision and directed “further consideration” of the issue in light of Place. United States v. Beale, 463 U.S. 1202 (1983), granting cert. and vacating United States v. Beale, 674 F.2d 1327 (9th Cir. 1982).

In Beale II, United States v. Beale, 731 F.2d 590 (9th Cir. 1983), the court considered the Place language that a dog sniff of luggage “did not constitute a ‘search’ within the meaning of the Fourth Amendment.” United States v. Place, 462 U.S. 696, 707. The circuit court majority concluded, after considering what it called the dicta of Place, Beale II, 731 F.2d at 593, that it would “adhere to our position in Beale I in the belief that it presents a coherent framework for judicial oversight of canine investigations,” id. at 595, and again called upon the district court to determine if “some articulable reason, not necessarily amounting to probable cause” existed for suspecting the luggage may contain contraband. Id. at 596 (emphasis in original). The circuit court thereafter granted rehearing en banc and withdrew its decision in Beale II. United States v. Beale, 728 F.2d 411 (9th Cir. 1984).

In Beale III, United States v. Beale, 736 F.2d 1289 (9th Cir.), cert. denied, 469 U.S. 1072 (1984), the majority finally followed Place and held that a dog sniff did not constitute a “search” within the meaning of the fourth amendment. However, Judge Pregerson, in dissent, stated, “I write further mainly to point out that the majority, in telling us that a dog sniff is not a search, fails to tell us what it is.” Id. at 1292 (emphasis in original). Judge Pregerson then went on to say:

“When using dogs to ferret out contraband, the police are not simply walking around hoping to come across evidence of a crime. Instead they are investigating. They are trying to find something. They are seeking evidence in hidden places. If this activity does not qualify as a ‘search,’ then I am not sure what does.”

Other federal courts after Place, however, did not adopt wholesale the proposition that a dog sniff is not a search. “It is one thing to say that a sniff in an airport is not a search, but quite another to say that a sniff can never be a search. The question always to be asked is whether the use of a trained dog intrudes on a legitimate expectation of privacy.” United States v. Thomas, 757 F.2d 1359, 1366 (2d Cir. 1985) (emphasis in the original). Thomas held that a dog sniff of the outside of a person’s home was an impermissible search without a warrant since “it remains a way of detecting the contents of a private, enclosed space.” Id. at 1367.

In United States v. Whitehead, 849 F.2d 849 (4th Cir. 1988), the court held that bringing a dog into a train roomette to smell the interior was permissible even though there was some fourth amendment activity involved, because the defendant had less expectation of privacy in his roomette than he would have had in his home or a motel room. Id. at 855. However, the court stated, “Place obviously did not sanction the indiscriminate, blanket use of trained dogs in all contexts.” Id. at 857. The court further agreed with the district court that reasonable suspicion was necessary before the search could be conducted. Id. at 858.

Finally, in United States v. Stone, 866 F.2d 359 (10th Cir. 1989), where a trained dog jumped into the defendant’s vehicle prior to alerting on drugs, the court found “the dog’s instinctive action [leaping into the vehicle through an open hatchback] did not violate the Fourth Amendment” because there was no evidence the police asked the defendant to open the hatchback. Id. at 364. The court stated that the “police may employ a narcotics dog to sniff an automobile which they have stopped upon reasonable suspicion to believe it contains narcotics.” Id. at 363 (emphasis added). The review of the above cases indicates that there is good reason to believe that we have not heard the last word on whether a dog sniff is a search under the fourth amendment.

The holding I set forth above would require that the authorities be able to articulate a reasonable suspicion of criminal activity, albeit after the fact, to employ a dog to sniff for contraband. If this court were to demand less, we would abdicate our responsibility for judicial scrutiny of searches under our State Constitution.

The final question at issue is whether the State introduced evidence of the drug detection dog’s reliability sufficient to establish that its alert gave officers probable cause to search Pellicci’s person. Pellicci emphasizes that the State never introduced evidence as to the dog’s breed or the breed’s ability to detect controlled substances. Admittedly, evidence of a dog’s ability to track suspects is necessary before tracking evidence may be admitted at trial to prove guilt. Cf. State v. Taylor, 118 N.H. 855, 857, 395 A.2d 505, 506 (1978). However, even if evidence fails the reliability test for admissibility to prove guilt at trial, a court may still give it weight in determining whether officers had probable cause to arrest or search. Maya, 126 N.H. at 598-99, 493 A.2d at 1146. Because it is unapparent how the fact of the alert could have borne on the issue of guilt in this case, I consider below only whether the evidence of reliability the State did provide was sufficient to allow the trial court to give weight to the alert in determining probable cause.

At the combined hearing and trial, the State introduced evidence that: (1) Patrolman Ronchi and the drug detection dog had completed a six-month training program of building, vehicle, and open field searches; (2) the dog had been trained to detect cocaine, marijuana, hashish, crack and heroin; (3) the dog had a 95% success rate in detecting such substances in vehicles; (4) when the dog indicated the presence of controlled substances in a vehicle, “his ears would perk up and go straight forward and [he] would also start pushing his nose [into the vehicle]”; (5) the dog alerted Patrolman Ronchi twice in this manner to the possible presence of controlled substances in Pellicci’s vehicle. Contrary to Pellicci’s further contention, there was no evidence that the dog was ever directed to sniff his person. Thus the trial court could have found that it was unreasonable to conclude anything about the dog’s reliability from its failure to alert Patrolman Ronchi to the presence of the drugs later found on Pellicci.

Taken together, the above facts established the dog’s reliability sufficiently for the trial court to give its alert weight in determining whether the officers had probable cause to believe that the vehicle contained contraband. While I agree with Pellicci that a reliable alert to his vehicle would not necessarily help to establish probable cause to search his person, I believe that the search in this case was incident to his arrest, and therefore permissible.

Considered in combination with the evidence that justified the stop in the first place, the dog’s alert clearly established probable cause for Pellicci’s arrest. “Probable cause to arrest exists when the arresting officer has knowledge and trustworthy information sufficient to warrant a person of reasonable caution and prudence in believing that the arrestee has committed an offense. State v. Vachon, 130 N.H. 37, 40, 533 A.2d 384, 386 (1987). At the time they searched him, officers possessed evidence that Pellicci had just embarked, with a passenger, on a route he regularly took from the Club Excalibur to one of two nearby parking lots to make controlled substance sales to fellow club patrons. They also had evidence that his car contained such substances. All of this evidence taken together would justify a person of ordinary caution in the belief that Pellicci possessed such substances and was transporting them to a spot where he intended to sell them. The fact that the search immediately preceded the arrest rather than following it is of no consequence since probable cause for the arrest was established independently of the results of the search. “Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.” Rawlings v. Kentucky, 448 U.S. 98, 111 (1980). See State v. DeGrenier, 128 N.H. 547, 549, 517 A.2d 814, 816 (1986).

Affirmed.

Horton, J., did not sit; Brock, C.J., and Thayer, J., concurred specially; Batchelder, J., dissented.