Virginia Possession of Marijuana – The Dog Didn't Alert
If the police use a drug dog to investigate your vehicle, what happens if the dog doesn’t alert? It won’t matter one bit if you consent to a search.
Hello, my name is Andrew Flusche. I’m a traffic and misdemeanor defense attorney. I talk to a lot of people who are charged with possession of marijuana who tell me that the dog didn’t alert when the officers were going around the vehicle, but they don’t tell me that they consented to the search of the vehicle. That’s a real problem. The dog then really becomes irrelevant.
What the law says essentially is that the officer has to have probable cause to search your vehicle if they pull you over, or they need your permission. So, if at any time you give them permission to search the vehicle then any argument we would have about it being an illegal search really goes out the window. The only real argument we could have if you did consent to the search of the vehicle would be that perhaps the consent was not voluntarily made: maybe you were pressured into it under duress or something like that. Most of the time, if you’re pulled over on the side of the road, you’re not handcuffed, and it’s just a routine traffic stop, I don’t see how a judge would say that you were under any kind of duress. Maybe you felt stressed and pressured and the officer was saying “Come on, you have to do this, you have to do this” but still you were free to refuse the search and let them come up with their own probable cause if they could find it, if they had probable cause to begin with.
The problem is, the officers are very well trained and they know how to do their job well, and what they usually do is they pull you over, and if they suspect something they say “Oh you don’t have any illegal things do you? You don’t mind if I search, do you?” They do it in a very friendly way and if you resist and say no initially then they say “OK well we’ll get the dog out and it’s going to take a little while” and that they’re going to find out anyway and it’s going to be harder for you. Some people, at that point, as they push that string along, some people do end up consenting to the search. Again, once you consent; once you say “Yes, it’s OK”; then there is really not any kind of argument that the search was done illegally. If you allow them to search, there is really no argument.
It’s the same thing as far as field sobriety tests go for a DUI case. It’s the same thing if they come to your house or hotel room saying that they’re going to search. If they don’t have a search warrant then they really can’t search unless you let them in to search or there is some other exception that applies. But the rule of thumb is if you consent to a search or anything like that then you’re really giving up any kind of legal challenge you might have to suppress any evidence that they find.