Canines need not be precise with their drug sniffing responses to justify probable cause to search, says Fairfax criminal lawyer

Canines for odor can be Virginia criminal defendants’ worst nightmare. As a Fairfax criminal lawyer, I am beside myself in disappointment that the Virginia Court of Appeals upheld a drug dog search finding methamphetamine and cocaine in the sunglasses compartment of an automobile, even though the dog returned untrained responses rather than trained responses. Moore v. Commonwealth of Virginia, ___ Va. App. ___ (2025). The day Moore was decided was a sad day that will continue with its harmful result unless and until overturned on appeal or by en banc full court review. With Moore’s comparing drug dog searches to searches based on informant information, the risk seems palpable that trial and appellate judges will engage in a downward spiral on what can constitute probable cause on the words of the latter and the actions of the former. Before anyone says that the only people who have anything to fear from any such errors are criminals, consider the privacy invasion that visits even full innocent people from intrusive police searches, and the many times that innocent people will unknowingly be near contraband, and then caught in a dragnet arrest, prosecution, and even conviction. Moore clashes with the Constitution’s Fourth Amendment’s guarantees against searches without probable cause to engage in them. Nonetheless, as a published three-judge appellate opinion, Moore now governs all Virginia trial courts and also the Virginia Court of Appeals unless and until overturned on appeal or disturbed en banc.

Moore entrusts too much faith in the reliability of the police handlers assigned to canines who give untrained responses

Police stopped Moore for a traffic violation, and immediately deployed one of their drug canines, who had been trained in detecting cocaine, methamphetamine and heroin. The dog gave untrained responses of heavy breathing and turning its head in the direction of an open car window, which the police dog handler interpreted as an effort for the dog to receive a reward (which I take to be along the lines of a Milk Bone). The handler testified that the dog had never returned a false positive in training, and that on-scene false positives were not considered, for instance due to the possibility of responding or alerting (this dog handler disfavors the use of the word “alert”) to residual odors that will not automatically reveal drug, or responding to odors of present drugs that are too well hidden to find. For Moore to have found Fourth Amendment probable cause based on such untrained drug dog responses waters probable cause to the level of a hunch, which the federal Supreme Court already tells us is not probable cause. Terry v. Ohio, 392 U.S. 1 (1968).

The danger of lumping together police informants and drug dogs

Moore has this to say about police informants and drug dogs: “Similar to assessing information provided by an informant, the court should consider several key factors in evaluating dog-alert testimony. These factors include the ‘training and reliability of the dog in the detection of specific drugs by odor,’ ‘the witness handler’s expertise in interpreting the dog’s behavior,’ the circumstances conducive to a dependable scent identification by the animal’ and ‘a credible evaluation’ of the dog’s behavior by the handler… In other words, the distinctive set of behaviors that constitute a drug dog’s means of signaling to its handler that the dog smelled drugs may vary based on the characteristics of the particular dog, the particular handler, and the specific training of both.” Moore. Moore consequently invites sloppy training and use of drug canines.

Counteract the Virginia Supreme Court’s Moore decision with a defense drug dog expert

If Moore has any silver lining as to drug canines, it is that unless a drug dog sniff results in a search warrant, Moore’s language gives defendants wide rights to present drug dog experts to counteract the hunchwork and guesswork that Moore invites for police and prosecutors. I have worked with a drug-sniffing dog expert, and know that the right experts in this area are not available in droves, can be far from inexpensive, and may well need to fly from far away, thus increasing their expense. Nonetheless, a good Virginia criminal defense lawyer needs to address such an expert option with their drug defense client.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against a wide array of Virginia felony, misdemeanor and DUI prosecutions. When you meet with Jon Katz for your free initial confidential in-person consultation about your court-pending prosecution, you have directed your defense in the right direction. Call 703-383-1100, Info@KatzJustice.com, or (text) 571-406-7268 to schedule your initial consultation with Jon.