Consent to search, includes Drug K-9 search of Vehicle

Arizona Court of Appeals Upholds K-9 Search of Vehicle; Police not required to advise that Drug K-9 will be used with Voluntary Consent; Your Rights in Vehicle Searches Q & A

Drug-K-9-Phoenix-AZ-1-219x300-221x300In a recent case ruling the Arizona Court of Appeals upheld a woman’s conviction for possession for sale of methamphetamine and drug paraphernalia.

The central issue in the Appeal was whether or not a K-9 drug search of her vehicle was within the scope of a voluntary consent to search she agreed upon.

Case Facts and Court Opinion

The case arose when an officer stopped the defendant for a cracked windshield and speeding. The officer issued a written warning and a repair warning.

Following the issuance of citations, the officer asked the driver if he could search the vehicle.

The driver answered yes.  The officer then gave her a consent-to-search form that was written in both English and Spanish. The officer and the driver conversed in English.

The form the officer gave her was written in both English and Spanish.

The suspect read and signed the Spanish portion of the consent form.  The officer asked her if she understood what she had signed. She acknowledged that she understood.

The consent-to-search form which the driver signed was central to this ruling.  With it, she consented to the following terms:

  • She could refuse to have her vehicle searched;
  • She could withdraw her consent to search at any time;
  • Evidence found during the search could be used against her in court;
  • The consent did not include property of other passengers in the vehicle.

Following the signing and affirmation of consent, the officer instructed the suspect and the passengers to leave the car and stand 20 feet away.

The officer then went to retrieve his drug K-9 from the patrol car to conduct a search of the suspect’s vehicle.

The officer would later testify that the defendant was standing where she could see him remove the K-9 from the car.

The suspect did not say anything to the officer at that time. She did not object to the K-9 search, or withdraw her consent at any point during the K-9’s search.

The vehicle’s exterior with the K-9, did not elicit an alert.  However, upon investigation of the interior, the dog directed a positive response at a purse on the driver’s seat.

The dog went back to the patrol car, and the officer searched the purse.  The officer found methamphetamine (meth) inside the purse.  The suspect confirmed that the purse with the meth inside belonged to her.

The defendant filed a motion to suppress the evidence. She argued that seizing the methamphetamine was a Fourth Amendment violation because the K-9 search was outside the scope of her consent.

The trial court found that she freely consented to the search;  and the search fell within the boundary of consent. After hearing the evidence, the jury found her guilty of the drug charges, and she was convicted.

The defendant Appealed the conviction. She argued that a warrantless search without consent or probable cause, was in violation of her Fourth Amendment rights.

The state did not argue that the officer had probable cause to search.  Therefore, the only issue for the Appeals Court was the scope of her consent which was central to the evidence suppression hearing.

The Appellate court noted that the trial court’s determination of whether the consent to a search is valid involved two questions:

(1) Was consent voluntarily given?

(2) Was the search within the scope of the consent given?

The defendant admitted her consent was voluntary.   However, she argued, that the search wasn’t within the scope of the consent her consent because she did not agree to a police drug K-9 investigation of her vehicle.

The Appeals court reasoned that when a general consent is given, it is “unqualified’ subject only to “reasonableness” citing United States v. McWeeney (9th Circuit 2006).

The court explained that the defendant remained free to withdraw or narrow the scope of consent at any time during that search, even though she initially consented to it.

Thus, she could have stopped the search and withdrawn her consent at any time, including at that point where she saw that a K-9 was present.

The Court outlined the reasonableness standard for determining the scope of consent.  They explained that the courts will consider what a typical, reasonable person would understand regarding the consent they provided.

The defendant argued that there was no explicit question about whether she agreed to the dog searching her car; and a reasonable person wouldn’t believe a K-9 investigation was included.

The court did not accept this contention.  Instead they reasoned that police K-9 searches were “common knowledge” citing precedents dating back from 1893 to current cases.

They explained that a reasonable person would know that K-9 searches are commonly used in law enforcement, especially for use in detecting drug contraband.

The Justices explained that trial courts must consider the “totality of the circumstances” involved with the exchange between an officer and a suspect to determine if the search was within the scope of the suspect’s voluntary consent.

The Arizona Court of Appeals concluded that the search was not in violation of the suspects 4th Amendment rights, and affirmed the felony drug convictions.

Impact of Ruling on Arizona Drivers 

Arizona red-rock-1385844-639x585

The 4th Amendment of the Constitution protects persons from unlawful search and seizures.  Therefore, police are required to obtain a warrant to search a vehicle.  There are a few exceptions to warrants. One of them is if they are given consent by the suspect.

The court held that drug K-9 searches fall within the scope of a person’s voluntary consent to search their vehicle.

The impact of this ruling on Arizona drivers is that if a suspect voluntarily agrees to have their vehicle searched by law enforcement officers, the police may include a drug K-9 search for drug contraband.   The officer is not required to tell the driver that they will be subject to a drug K-9 search. This aspect of the search does not need to be explicitly stated on the consent-to-search form.

Q & A: Your Rights in a Vehicle Search by Police 

Q: Am I required to consent to a search of my vehiclepuzzle-1-1419475-640x480-1-300x226?

A: No. You have the right to refuse a search of your vehicle.   Under the 5th Amendment of the Constitution a person is afforded protection against providing incriminating evidence to police.      

Q: What happens if I refuse to allow police to search my vehicle?

A: There may be consequences to a refusal.  The most common consequences is  that police may obtain a warrant to search the vehicle, and seize evidence.   In order to be granted a warrant, the officer will need to provide a showing of “probable cause” that evidence of a crime will be found.

Q:  What constitutes a valid and lawful consent?

A:  Consent must be voluntary.   Whether or not the consent is voluntary will be based on “totality of the circumstances”. 

Q:  If police say they will proceed without a warrant, or will get a warrant anyway, should I still refuse?

A.  You have a Constitutional right to refuse, and should never consent to a search.  There are many reasons for this.  One reason is that if you refused the search, and are later charged based on the evidence found in the vehicle, the lawfulness of the search can be challenged. In some cases there may be evidence that exists that you are not aware of that can be used against you belonging to someone else, or that you did not know could be considered evidence in a crime. 

Q: What is the safest way to say ‘no’ to a search?

A:  First be sure that you understand what the police officer is asking you, as the question may be phrased in a confusing manner which causes you to say ‘ yes’  instead of no’.   If you are confused, ask the officer to clarify their request.  Be respectful and polite.  Let them know that you understand that it is your Constitutional right to refuse a search, and do not consent to searches.

Classifications, Penalties and Criminal Defense Attorney for Meth Crimes Mesa AZ

“Prepared to Defend” – James E. Novak, DUI & Criminal Defense Attorney

James Novak Attorney

If you are charged with a drug crime in Arizona, you should consult James E. Novak, an experienced drug crimes defense attorney.

Meth crimes are considered “Dangerous Drug” crimes in Arizona.  Possession crimes for meth are brought as Class 4 felonies.   Sentencing for a first offense conviction can range from 1.5 years minimum to 3 years in prison maximum, not including mitigating or aggravated factors.

If a person is convicted of possessing an amount that exceeds the Statutory Threshold in Arizona they will be non-probation eligible, and subject to extended mandatory prison sentencing.  This is the case even for a first offense conviction.   The Threshold Amount for Meth possession in Arizona 9 grams.

Meth offenses involving sales, transport, intent to sell, manufacturing, administration, distribution, or possession of equipment or chemicals to manufacture are charged as Class 2 felonies.   A class 2 meth drug conviction calls for a prison term from 4 years minimum to ten years maximum, not including mitigating or aggravated factors.

Other penalties apply including large fines, felony record, loss of certain civil rights, and participation in mandatory substance abuse programs.

No matter how serious the charges, you have the right to retain a qualified drug defense attorney to defend your charges.

James Novak is a dedicated DUI and criminal defense attorney and highly skilled lawyer, who formerly worked as a prosecutor.

If retained, he can provide you with a strong defense, and make sure your rights are protected throughout the legal process.  James Novak strives to get the best possible outcome, which he believes is a product of strong representation and early retention.

The Law Office of James Novak offers a free initial consultation for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. You can contact or call The Law Office of James Novak at (480) 413-1499 and speak with James Novak for your free and confidential initial consultation.

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