Jon Katz, P.C.

Virginia criminal defense — More on search limits on police following a positive drug dog alert

Using police drug sniffing dogs is fraught with unreliability. as further addressed here, here, and here. Despite this unreliability, Virginia law poses substantial hurdles to a criminal defendant’s obtaining by a records subpoena data about the training and performance of the case’s drug dog.

Fortunately in Virginia, a positive drug dog alert on a car, by itself, is not enough under the Fourth Amendment to justify searching the car’s occupants, versus searching the car itself.  Whtehead v. Virginia, 278 Va. 300, 683 S.E.2d 299 (2009).

Sadly — but at least in an unpublished versus published opinion — the Virginia Court of Appeals recently found probable cause to search a car’s rear passenger, after a valid traffic stop that led to a drug dog alert and the officer’s claim to finding marijuana residue (I assume that means marijuana flakes) on the driver’s and said rear passenger’s floorboard. Raymond Antonia Williams v. Virginia (Va. Ct. App. Record No. 0233-16-1, March 21, 2017) (unpublished). Absent any field test of the suspected marijuana residue (no such field test was conducted), probable cause to search rear passenger Williams was lacking; Williams does not address the field testing issue, so it is unclear whether Williams’s lawyer preserved the issue at the trial court level or raised it on appeal.

The subsequent search of Williams yielded a crack pipe, the discovery of cocaine inside the pipe, and Williams’s conviction for possessing cocaine.

Consequently, the only saving grace here is that Williams is an unpublished rather than published opinion.