Man’s best friend can be a criminal’s worst nightmare. With a sense of smell estimated at 10,000 to 100,000 times better than humans, K-9 drug dogs are trained to detect drugs such as cocaine, heroin, ecstasy, meth, and marijuana. But the dogs are not trained to distinguish between these drugs. Now that marijuana has been legalized in some parts of the country, does this mean entire K-9 units will have to kick up their paws and head to Florida?
Probable Cause Standard in Searches
For decades now, police have been using man’s best friend for their war on drugs. In a routine traffic stop, a law enforcement officer pulls a vehicle over. Within minutes, another officer arrives in a second vehicle with a “drug dog” who is led around the stopped car. The dog’s role is obvious. Law enforcement cannot search a vehicle without a warrant unless probable cause exists that illegal contraband is contained therein. If a trained drug dog “alerts,” then law enforcement has the requisite probable cause to search the vehicle.
Police can perform these warrantless searches with probable cause that the vehicle contains evidence of a crime. The use of police drug dogs has helped officers reach the probable cause standard much easier. If the dog alerts to contraband, then the probable cause standard has been reached.
However, with the legalization of marijuana in some states, the ability to reach the probable cause standard for dogs has become complicated. If a dog is trained to alert to numerous drugs including marijuana- which in some cases is now legal, does this affect law enforcement’s ability to conduct a search?
What happens in states like Ohio which has recently opened dispensaries for the sale of medical marijuana? A look at a legal decision from Colorado can shed some light on what is now in store for Ohio in such cases.
Probable Cause Gets Complicated
The legalization of marijuana in Colorado has complicated the landscape for police drug dogs. In the State of Colorado, if you are 21 years of age, you are allowed to legally possess up to one ounce (28 grams) of marijuana for personal use. In Colorado v. McKnight, a drug dog named Kilo alerted to a glass pipe used to smoke meth that was inside a stopped vehicle. However, Kilo was trained to alert for cocaine, heroin, ecstasy, meth, AND marijuana, which was no longer illegal. The issue is now whether, with current training, an alert from a drug dog gives an officer probable cause to search a vehicle if there is a possibility the dog will alert only to a legal substance like marijuana.
In this case, the Colorado Court of Appeals held that no probable cause existed and determined the search was unconstitutional. The court rationalized its ruling by stating that the ambiguity of the alert does not provide enough for probable cause, especially if the dog is trained to detect multiple narcotics.
What Does This Mean for K-9 Units?
As more states legalize marijuana, more K-9 units may become obsolete. At least in how they’re currently constructed. Drug dogs are being forced into early retirement because their noses, which are their greatest strength, have become their greatest flaw. The drug dogs’ inability to differentiate between the narcotics detected hinders a police officer’s ability to find probable cause to make an arrest.
Fortunately, police departments have been preparing for this eventuality by training dogs to alert to narcotics which do not include marijuana. Yet, this training is not cheap and smaller precincts are still taking a chance with the dogs they already have trained. The case in Colorado will go before the Colorado Supreme Court, which will grant a decision which may or may not be appealed up to the nation’s highest court. Even though it is not set in stone, the future of K-9 units are both bleak and unknown.
If you have any questions regarding criminal issues arising from traffic stops or drug charges, contact Columbus, Ohio criminal defense lawyer Joe Edwards at 614-309-0243. Attorney Edwards has over 25 years of experience representing individuals at the state and federal levels.