May 03, 2013 A drug dog’s positive alert, by itself, does not justify searching the car’s passengers
A drug dog’s positive alert, by itself, does not justify searching a car’s passengers, where the police have no particularized suspicion to believe that the passenger possesses drugs or is acting criminally together with the others in the car. Whtehead v. Virginia, 278 Va. 300, 683 S.E.2d 299 (2009).
Before winning in the state Supreme Court on suppression of the search that found heroin on him, Whitehead went through the angst of losing his motion to suppress evidence before the trial court, rolling the dice by going to trial rather than pleading guilty, likely remaining in prison when the Virginia Court of Appeals upheld his search as havng been based on probable cause (and finding that the likelihood increased that the dog had alerted to drugs on Whitehead, as the police eliminated the car and the vehicle’s driver and other passengers as drug possessors), and awaited argument in and a decision from the state Supreme Court.
Thanks to the unanimous Virginia Supreme Court for recognizing that police inability to find drugs in the car nor on the driver nor other passengers after a positive drug dog alert, could as easily (if the drug dog alert had been accurate and reliable) have been the result of residual odor of drugs that were no longer in the car, as an indicator that Whitehead possessed drugs. Whitehead.