It is extraordinarily common for law enforcement to conduct searches on automobiles that are stopped for a variety of traffic violations even if the traffic violation may seem innocent, including having expired registration, license plates, or simple speeding tickets. The law enforcement officers will use their training and their observations of the driver, the passengers, and the circumstances of the stop to discuss potential for a drug-related search of the vehicle.
This raises a variety of fact-specific constitutional issues. Although an officer may request permission to search a vehicle, you do not have to grant him permission to search the vehicle. You just don’t have to consent. The officers will typically ask for consent prior to searching the vehicle unless they have something called “probable cause.”
Probable cause in the context of searching a motor vehicle is typically visual observations of drugs, drug material in the passenger compartment of the vehicle, or statements of the passengers or driver regarding drugs and drug use. If there is no probable cause or there is no consent by the driver or the owner of the vehicle to search a vehicle, then it is not typically constitutionally viable for the police to search your vehicle.
There are some exceptions to this however, most notably what is called the “Free Air Sniff.” With very specific timing exceptions, it is lawful for a canine officer to conduct an open air or Free Air Sniff of the vehicle meaning the officer detains the person and calls for a canine officer as backup. The canine officer can arrive on the scene, perform an open air sniff, and then the canine officer alerts the motor vehicle that it is ground for a continued search.
However, there are very specific constitutional issues that may be applied depending on the specific facts and circumstances of your case. So if you are subjected to a drug related arrest after a canine search that didn’t involve consent or a probable cause, you want to tell it to an experienced defense attorney right away because there may be lots of fodder pre-trial motions and investigation into the search.
Just because a canine officer is coming does not mean that the driver or the occupants should necessarily automatically consent to a search. This is a common investigatory technique used by officers and they will say, “Well we have the dog coming. Why don’t you go ahead and let us search you anyway?” The person stopped and asked for consent of the search has to consider answering this question very carefully. The officer may very well be bluffing and the person who is being requested for permission to search their vehicle should consider their right and contact an attorney at the earliest because they can as soon as possible discuss what constitutional rights can they have.
Patrick Woolley Attorney At Law