Drug dog sniffs need to be challenged, says Fairfax criminal lawyer

Drug dog sniffs — and all canine searches (for instance also for weapons and contraband — need to be challenged by criminal defendants found with contraband as a result of such sniffs. As a Fairfax criminal lawyer, I know that the federal Supreme Court enunciated a high bar for challenging search warrants issued on the basis of a drug canine alert. Florida v. Harris 568 U.S. 237 (2013) (“[t]he question… is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.”). In challenging such search warrants, Virginia criminal defense lawyer needs to be ready to argue whether Franks v. Delaware, 438 U. S. 154 (1978), is the basis for challenging such drug canine alerts, and the extent to which Franks permits going outside the four corners of the law enforcement officer’s search warrant application. Today’s article addresses the Virginia Court of Appeals’s upholding the trial court’s suppression of a warrantless search that yielded  2.5 ounces of marijuana after the drug canine jumped up and down on the defendant’s car. Wiggins v. Virginia, Record No. 0392-25-1 (Va. App. 2025) (unpublished).

Fairfax criminal lawyer says pay attention to whether drug dog sniffs follow the canine’s touching your car

Repeatedly, appellate courts permit dog sniffs that do not prolong a lawful traffic stop when the dog does not touch the car. Here, the dog’s touching of Wiggins’s car was blatant: “[Drug dog] Axel’s repeated jumping onto Wiggins’s vehicle and physical placement of his paws on the vehicle, in the process of conducting a drug sniff, constituted a physical occupation and a trespass.” Wiggins. “[W]e conclude that Axel jumped onto the vehicle to obtain odors of narcotics coming out of the vehicle, particularly those odors that were coming through the window. This is consistent with Officer Jefferson’s testimony that Jefferson asked Wiggins to roll the window down to allow odors to escape and his testimony that Axel’s training involved jumping on scent walls to detect odors. It is also consistent with the body camera footage in this case, which shows Axel immediately placing his nose at the opening of the window upon approaching the car, as well as the testimony of Paul Roushia, who observed that when Axel jumped up and closed his mouth, he was sniffing. Therefore, under Jones [(U.S. v. Jones, 565 U.S. 400 (2012)], conduct constituted a physical trespass for the purpose of obtaining information. The drug sniff was, therefore, a search.”  Id. As a Fairfax criminal lawyer, I urge you to pay close attention to whether a detection canine touches any part of your vehicle or other property in checking for contraband or other evidence of criminal activity. Although Wiggins is unpublished, and therefore not binding, its reasoning is very persuasive for your Virginia criminal defense lawyer to argue in court. Clearly, the police had no Fourth Amendment probable cause nor even reasonable suspicion to have conducted this dog search.

When a law enforcement officer (LEO) tells you to open your window or hand over an object, that can be argued to be a search

Not addressed in the Wiggins drug dog case is whether it was a search for police officer Jefferson to direct Wiggins “to roll down the window halfway so that smells could escape the vehicle and because Officer Jefferson ‘[didn’t] want the dog to jump through the window and maybe, who knows, something happens.'” Wiggins. As an aside, it is interesting that Wiggins initially states that LEO “told Wiggins” to roll down his window, which comes across as a directive, but then transitions to saying that police “asked Wiggins to roll the window down,” which sounds like a request. This would be a critical distinction had the court ruled against Wiggins and directly addressed that directive, but Wiggins won and the court did not address the Fourth Amendment implications of that directive. Also of interest is that Axel was trained not to identify marijuana (probably because a dog cannot distinguish between lawful and unlawful quantities of cannabis), but only marijuana was the only contraband that police found in his car, which, of course, raises questions about the reliability of Axel’s alert to Wiggins’s car. Wiggins didn’t challenge that issue on appeal.

How important is it for my Virginia criminal lawyer to understand the applicable intricacies of the Fourth Amendment?

Clearly, you want your Virginia criminal lawyer to have a sufficient knowledge and facility with the law applicable to your case, including using the Fourth Amendment of the Constitution to move to suppress damning evidence that the police find against you, whether after a drug dog alert or otherwise. Ask your potential criminal defense lawyer about their grasp of the law applicable to your case, and the extent to which that attorney keeps abreast of relevant criminal case law and statutory developments.

Top-rated Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. Your start to a great Virginia criminal defense begins with your initial free in-person confidential consultation with Jon Katz about your court-pending prosecution. Usually Jon can meet with you within a business day of your contacting our law firm at 703-383-1100, Info@BeatTheProsecution.com and (text) 571-406-7268.