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Officer’s Threat to Have Drug-Sniffing Dog Called to Scene of Traffic Stop Voids Drug Possession Conviction

On August 5th, the Virginia Court of Appeals rejected the claims of the Commonwealth that police officers had not “seized” the defendant when they told him they were going to get a drug-sniffing dog to “go over his car” unless he gave permission for them to search it. In Middlebrook v. Commonwealth, the issue before the court was whether that statement to Middlebrook, which prompted his admission he had marijuana in the car, arose from a consensual encounter or not. The trial court found that the encounter was consensual, and that the admission was voluntary.

The Court of Appeals disagreed and threw out Middlebrook’s conviction because the officers lacked any legal basis to detain him, other than their unformulated suspicion’s that he might be selling drugs. And, the court held, after the officer told him that he was going to call the dog to the scene, “no reasonable person would have felt free to leave.”