Consent to Search & Drug Dogs | “If you don’t consent, we’ll just get the drug dog”
I recently posted a video entitled “When am I required to give consent to search to the police?”
And the answer is NEVER. Under any circumstances. You are NEVER required by law to consent to a search or to sign a consent form.
One of the examples I gave in that video has generated some questions of it’s own. I said that if the police pull you over for a traffic violation, and ask to search your car, you do NOT have to give consent to the police to search. You can simply say “sir, you do not have permission to search my car.”
A very good question I got in response to that example is this:
What do I do if the police say “if you don’t let us search your car, we’ll have to get the drug dog.” What am I supposed to do then?
Well folks, the simple fact of the matter is, what the police decide to do or not do to further their investigation, is not within your control. You should simply repeat your original response: “sir, you do not have my permission to search my car.”
If the police say: Well, we’re gonna have to get the drug dog
Respond: Sir, “you do not have permission to search my car.”
If the police say: You’re really gonna make us all wait out here in the hot sun, waitin’ for the drug dog???
Respond: Sir, “you do not have permission to search my car.”
Instead of doing that, many people at that point would just give up. It’s like oh well they’re going to get the dog, and they’re going to say the dog alerted. So, they’re going to search my car no matter what I do. So, I might as well give up and just sign the consent to search.
And all of those things are true, except for the last thing, I might as well give up and consent to the search. That’s wrong.
The law and the constitution limit how and when the police can search you, your car, your bag or your home. If during a search, the police violate those limits, your lawyer can request that evidence found in violation of the law or the constitution be thrown out of court.
That’s called the exclusionary rule. Evidence illegally obtained, obtained in violation of someone’s constitutional right to be free from unreasonable searches and seizures, can be excluded from court.
But if you throw your hands up and consent to a search, you GUARANTEE that any evidence found will be legal, and you GUARANTEE it will be able to be used against you in court.
So, in the example we started with, the traffic stop and the threat of a drug dog, what are some of the limitations the law and the constitution apply to the police?
Now, pay attention. This is the important part. If you remember nothing else from this video, remember this:
Many people don’t know this, but the law applies limitations on HOW LONG the police can DETAIN someone under a variety of circumstances.
Now, a detention is different from an arrest. When the police arrest you, they haul you off to jail. When police detain you, it’s temporary. A detention CAN turn into an arrest. But THE most common detention is the one we are talking about right now, a traffic stop. You are detained when the officer pulls you over. And you are then free to go after he gives you your speeding ticket.
So, what ARE the limits on HOW LONG the police can detain someone? In the case of a TRAFFIC STOP, the SCOTUS has said that the police can only detain a motorist for as long as is reasonably necessary to issue the citation. If they detain you longer than that, the detention is in violation of the constitution.
And Louisiana has even codified this rule in its own laws. Louisiana Code of Criminal procedure article 215.1 paragraph D as in Delta states: “During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may NOT detain a motorist for a period of time LONGER THAN REASONABLY NECESSARY to complete the investigation of the violation and issuance of a citation for the violation.”
Let me repeat that in plain language. During a detention for a traffic ticket, an officer may NOT detain a motorist LONGER THAN REASONABLY NECESSARY to issue the ticket.
So yes, the police might get a drug dog. And yes, they might say it alerted and they might search your car. BUT if that process of getting the dog and having him do an open-air sniff takes longer than is reasonably necessary to issue the traffic ticket, the detention and subsequent search are illegal, and any evidence found can be excluded from court.
So not only do you want to refuse consent to the search, but you ALSO want to make it clear that you do not agree to be detained longer than is reasonably necessary for the issuance of the traffic ticket.
So clearly, you would NOT want to say something like “go ahead and get the drug dog, I don’t mind, I’ll wait here all day.” A statement like that would imply that you’re waving your rights under the Constitution and under Louisiana code of criminal procedure article 215.1.
That’s why, earlier, I recommended that you simply repeat that you do not give consent to a search of your vehicle. If the officer asks whether you mind waiting for the drug dog, you should simply repeat that you do not give consent to a search of your vehicle.
The only OTHER statement I would recommend, is that you should ask repeatedly and periodically IF YOU ARE FREE TO GO. This makes it clear that you are not remaining of your own free will, and that the officer is detaining you.
That’s important because his actions in doing so can then be reviewed for reasonableness under the laws and the constitution to determine if he violated your rights by detaining you for an excessive period of time.
Whether a search is legal or illegal depends on the facts of the case. Every case is different. But when you consent to a search, you GUARANTEE that any evidence found will have been found legally, you GUARANTEE that it will be able to be used as evidence in that criminal trial, and you GUARANTEE that a court will be able to use it as a basis for a finding of guilt.
If you refuse to give consent to a search, you give your lawyer an opportunity to challenge the legality of the search on your behalf, and possibly obtain a dismissal.
I’m Kirk Piccione. I’ve been defending criminal cases for over 30 years. If you need help, call me. Our contact information can be found at kirkpiccione.com OR on Facebook at Piccione & Piccione Criminal Defense Lawyers in Lafayette Louisiana.