Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A roadside chat on a tactic many officers believe is off limits. A driver refuses consent, the officer explains that a K9 is on the way, and the driver changes their mind. The question comes from an officer in Texas whose department treats a refusal as final and goes straight to the dog. Anthony walks through the three factors of consent and a Pennsylvania Superior Court case that found no coercion.

If you ask to search a vehicle and the driver says no, you say, hey, that’s fine, that’s your choice. What we’re going to do now is we’re going to call a K9. And then the driver changes their mind and they allow you to search the vehicle, and you do search it, you find evidence, and charge them accordingly. Is that coercion?

This is a common, common question. I can tell you that many, many officers believe that this is a prohibited tactic and it is coercive.

So we have an officer, I don’t know where he’s from, Texas. He says, all right, when asking for consent to search a vehicle after reasonable suspicion, okay, that’s great, the driver refuses consent to search. You then advise the driver a K9 is en route. The driver automatically gives consent. They don’t want that dog sniffing their car, and consent to search by saying, yes, go ahead and search the car, multiple times. In our department we practice, once a search is refused, we just go get a narcotics canine. Is there a case that says that this would actually be lawful?

So this is actually an urban legend, that you can’t do this.

What are the three factors of a valid consent search?

Let’s lay some ground rules here. The first one is, what is consent? Consent consists of three factors.

Number one, was the consent voluntary? That’s going to be an issue here. Was it voluntary, or was it coerced? Voluntary simply means that a reasonable person would feel they actually had a choice. That their free will was not overborne by coercive factors by the police.

The second factor for consent is authority. Are you asking the right person for consent? You should not be going to UPS and saying, hey, can I have your consent to search this parcel? They cannot give you consent to search a parcel. They can search all they want, that’s a private search, but they don’t have the authority to override the Fourth Amendment in a parcel.

And then the third thing is scope. Every search has limitations. If I let you search my backpack and there’s a lock on one of the zippers, I probably didn’t give you permission to break my lock open with just basic consent. Can I search your backpack? Okay. So voluntary, they have the authority, and don’t exceed the scope of the consent.

Is telling the driver you will call a K9 coercion?

Well, voluntary. Just because you give people their options, just because you tell them what is going to happen, is not automatically coercive. That’s ridiculous to think otherwise. I mean, these are, for the most part, adults, and they can make adult decisions. People can change their mind based on what you tell them.

How should you explain the K9 option without it becoming coercive?

The main thing is this. Number one, if you’re going to use this tactic, you have to be cool, calm, collected. Be respectful. Don’t be like, oh, you want to play hardball? I can play hardball too. Don’t have your hand on your gun. Don’t have them surrounded by a bunch of cops. Just talk like a respectful, polite citizen.

Say, hey, that’s cool. That’s your choice. That’s why I asked you, because you actually do have a choice. But let me share with you what I’m going to do now. Because I have reasonable suspicion, I’m going to call K9. The K9 will take, I don’t know, like 20, 25 minutes to get out here. It’ll sniff the car, and if it alerts, we’ll just search it under the motor vehicle exception. Or if your state is restrictive, like Pennsylvania, New Mexico, and Washington, hey, if it alerts, we’ll just apply for a search warrant.

Which is another factor. Whenever you tell them something, yeah, you’re being cool, calm, and collected, but don’t tell them any lies. If you know you can’t get a K9, then don’t tell them, hey, I’m just going to call a K9, when you know you can’t get a K9 because you’re in the middle of BFE. Don’t say, hey, that’s cool, I will get a warrant. Don’t say that, because you’re implying that you are going to get that warrant. You may not get that warrant. So don’t tell them that it’s basically a foregone conclusion that you’re going to get a warrant.

Just be truthful, be respectful, be low key. Say, that’s cool, this is what we’re going to do. Is that what you want us to do? You just want us to call a canine and go from there? And then that’s fine. But people can change their mind.

What if your agency says no means no?

Now, I have a lot of officers who are like, that’s fine, I hear you, but that’s not the way we roll at this agency. If they say no, no means no. And I say, hey, that’s cool if you want to roll like that. But why would you throw into the garbage a tool that I just gave you that the courts will uphold?

Look, I am totally cool with, you know what, Anthony, that’s not the way we roll. We’re a big agency. We have a dog right on the corner. If they say no, fine. But have a reason for why you do that. Because one day it may be snowing out, raining out. It may be that your K9 handler, who’s the only one that you can get, just called off duty, and he’s your best friend, and you know that he’s about to go to a soccer game with his kids, and he’s been working overtime constantly for the last few days. It’d be kind of nice if my best friend can just take some time off and not have to come all the way back to scene. It might be 2:00 in the morning and you have to do a call out and wake up the handler.

The point is, there will be that day when you’re dealing with a tweaker, who you’re predicting you’re going to find a couple grams in the car, and they change their mind, and you’re like, okay, I’ll just take their consent. But if you’re like, nah, I hear you, but A, I have a K9 handler right on the corner, or B, this is like cartel stuff, I think this car is going to be loaded down, then maybe that’s the case where you just don’t accept their change of mind and you just go with the K9.

What did the Pennsylvania court say about consent after a K9 warning?

But the case that we’re going to talk about is a Superior Court case from Pennsylvania. Essentially what happened here is what we’ve just been talking about. The trooper asked for consent. The occupant, he was related to the owner of the car, he was the passenger, but regardless, this is a person who can give consent. He said no. The trooper said, that’s fine, we’re going to call canine, if that’s what you want to do. Then the occupant changed his mind and allowed the consent.

The court said here, the defendant argues that the trooper’s statement that the car would be detained until the drug sniffing dog arrived, unless he consented to the search, placed undue pressure on him. We disagree that this is coercion. The trooper merely explained the defendant’s options to him, and the defendant remained free to refuse consent and wait for the dog. Or actually, in this case, he was actually offered to leave, even though they had reasonable suspicion for the car. I don’t know why they would allow him to leave, but he is a passenger that is related to the owner of the car.

While the trooper’s indication that he was going to have a dog sniff the vehicle required the defendant to make a decision regarding what he should do, we do not consider it to have been overly coercive. Moreover, this consideration is at most one of the factors in a totality of the circumstances analysis. There is no law out there, case-wise or otherwise, that you only get one bite at the apple for consent. It’s all evaluated under the totality of the circumstances. The statement by police that they would have to get a search warrant is merely a factor, but not a positive one. That’s another case that they talked about, cops saying stuff like this. Weighing all the relevant factors here, we disagree with the defendant that his consent to search was not voluntarily provided.

So there you have it. Yes, my friends, people can change their mind. They are adults.

What are the pro tips for consent after a refusal?

Leaving you with some pro tips here. Number one, be respectful, polite, low key. Don’t threaten them. Make sure everything else is good to go, the optics. Not surrounding them, no hands on guns, stuff like that.

Number two, don’t say something that you can’t actually do. If you don’t have a dog, you don’t have a dog. Obviously, if you don’t have reasonable suspicion, you can’t hold them up for a dog. Things like that. Just be truthful, low key.

If they change their mind, make sure it’s all captured on body cam. You may even want to get that in writing, just so that you can prevent, or kind of eliminate, some of these arguments that happen in court, like, oh, they coerced me. It should be okay if you did everything correctly.

The short version

  • Consent has three factors: voluntary, authority, and scope. Voluntary means a reasonable person would feel they actually had a choice.
  • Just because you tell people what is going to happen is not automatically coercive. These are, for the most part, adults, and people can change their mind based on what you tell them.
  • Be cool, calm, collected. No hand on the gun, no crowd of cops. Don’t tell them any lies. If you don’t have a dog, you don’t have a dog, and don’t imply a warrant is a foregone conclusion.
  • The Pennsylvania Superior Court said the trooper merely explained the defendant’s options, and it was at most one factor in the totality of the circumstances. There is no rule that you only get one bite at the apple for consent.
  • Capture the change of mind on body cam, and consider getting it in writing.

Until next time, my friends, you stay safe.

Related from Blue to Gold

This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: EP#747