Marijuana

Does Legalization Make Marijuana-Detecting Dogs Obsolete?

What use is a pot-sniffing canine when pot is no longer contraband?

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Testifying before a House subcommittee last year, the head of the Drug Enforcement Administration warned that marijuana legalization is bad for dogs. DEA Administrator Michele Leonhart was talking about pets that inadvertently eat cannabis-infused snacks. But she could have been referring to marijuana-detecting police dogs, which face an uncertain future in jurisdictions where a whiff of pot is no longer evidence of a crime.

As legalization takes effect in two more states this year, police and prosecutors in Oregon and Alaska are confronting the same canine conundrum that their counterparts in Colorado and Washington have been dealing with since 2012: What good is a dog trained to find marijuana when marijuana is legal?

Drug dogs typically are trained to detect marijuana and several other substances. When they smell one of those drugs, they are supposed to alert their handlers with a signal such as barking, scratching, or sitting down. But the dogs cannot indicate which drug they have smelled, let alone distinguish different quantities—a crucial issue in Colorado, Washington, Oregon, and Alaska, where adults 21 or older are allowed (or soon will be allowed) to possess up to an ounce of marijuana in public.

Until recently, those canine limitations did not matter, because any quantity of marijuana was unambiguously illegal throughout the country. But the ongoing collapse of marijuana prohibition is undermining the legal assumptions that have made drug-detecting dogs such a handy law enforcement tool, one that can be deployed at will to justify searches that would otherwise be unconstitutional.

According to the Supreme Court, letting a police dog sniff a suitcase or a car is not a search, so it does not require probable cause. At the same time, an alert by that dog provides probable cause for a search. Those conclusions, which have always been questionable because they are based on a grossly exaggerated sense of the average police dog's accuracy, look even shakier in light of marijuana legalization.

In the 1983 case U.S. v. Place, the Court concluded that a dog sniff does not qualify as a search under the Fourth Amendment because it "discloses only the presence or absence of narcotics" and "does not expose noncontraband items that otherwise would remain hidden from public view." But that is not true in states where an ounce or less of marijuana does not qualify as contraband. "If a drug dog can reveal non-criminal information about a person," writes University of South Carolina law professor Seth Stoughton in a 2014 Justia essay, "it may fundamentally change the Fourth Amendment character of police canine sniffs."

Even if cops in states where marijuana is legal can continue using the same old dogs without any evidence of wrongdoing, those dogs will be much less useful. A dog's alert to a car (assuming it is accurate) will now indicate anything from a perfectly legal half an ounce of weed in the glove compartment to a felonious kilo of heroin in the trunk. The former scenario will be much more common than the latter, since motorists will be much more likely to have marijuana than the other drugs that police dogs are trained to detect, especially now that people are allowed to possess it in public. If a search triggered by a dog's alert typically finds legal quantities of marijuana (when it finds anything at all), it is hard to see how that alert indicates "a fair probability" that evidence of a crime will be found, which is how probable cause is defined. "If a drug dog could be hitting on a legal substance," Stoughton writes, "courts could very well find that the alert itself does not establish probable cause."

Pam Loginsky, a lawyer with the Washington Association of Prosecuting Attorneys, anticipated this problem in a memo she wrote a month after voters approved I-502, that state's legalization initiative. "Officers will no longer be able to rely solely upon an alert by any of the narcotic canines currently on patrol," she advised prosecutors in December 2012. "If the suspect is under the age of 21 or the canine was not trained to detect marijuana, a positive alert by a trained and certified dog will be sufficient to establish probable cause for a search warrant. In all other cases, the officer will need to develop additional evidence to support a belief that: (1) the substance being detected is heroin, methamphetamine, cocaine or crack cocaine; (2) that marijuana is present in an amount greater than one ounce; and/or (3) that the suspect is manufacturing or distributing marijuana."

Under the Washington Supreme Court's interpretation of the state constitution's privacy clause, police generally need a warrant to search a car. By contrast, the U.S. Supreme Court has long held that the Fourth Amendment allows police to search cars without a warrant as long as they have probable cause, which is the rule that prevails in most states. But either way, police in states where marijuana is legal will face the problem identified by Loginsky: In situations involving adults, an alert by a conventionally trained dog is no longer specific enough to justify a search.

Cops who ignore this new reality do so at their peril, risking lawsuits and evidence suppression. If a vehicle search turns up half an ounce of pot and a kilo of heroin, there will be no way to tell which triggered the dog's alert, and the defense will argue that the heroin cannot be admitted as evidence because it was found illegally. The defense would have an even stronger argument if the search discovered stolen property or a murder weapon along with a small amount of marijuana.

In light of these difficulties, the Washington State Patrol and the Seattle Police Department decided to phase out the use of marijuana-trained dogs, gradually replacing them with animals that alert only to heroin, methamphetamine, crack, and cocaine powder. Police in some Oregon jurisdictions, including Clackamas County and Medford, also are moving away from marijuana-trained dogs.

Meanwhile, Seattle police are trying to retrain their older dogs so they no longer alert to marijuana, a tricky approach that may invite legal challenges to searches triggered by retrained animals. As the lieutenant who oversees K-9 units in Colorado Springs put it in a 2013 interview with Bloomberg News, "Once you put an odor on a dog, it's very difficult to get that odor off a dog." Lawrence Myers, a veterinarian and neurophysiologist at Auburn University who is an expert on dogs' olfactory capabilities, says "retraining is possible, but it takes time and scientifically valid testing to show that the dogs no longer alert to marijuana." He adds, "I doubt that many departments would do the testing."

The Tacoma Police Department is sticking with conventionally trained dogs, and so are police in several Colorado cities, including Denver, Aurora, Lakewood, Pueblo, and Colorado Springs. New dogs are expensive (about $15,000 each if fully trained, according to the Colorado Springs Gazette), and these departments say the old ones are still useful in certain situations, such as school searches, or in conjunction with other sources of evidence.

Some cops say they are waiting for guidance from state courts. "There are so many unanswered questions," the officer in charge of K-9 training at the Colorado Springs Police Department told Bloomberg News. "There have not been any test cases to say yes or no, we do not have the right to do this."

Other departments are being more proactive. The Gazette reports that Loveland, a city about 50 miles north of Denver, is phasing out its marijuana-detecting dogs based on advice from the Larimer County District Attorney's Office. "It basically goes back to the Fourth Amendment prohibition on illegal searches," a police spokesman told the paper. "We want to make sure we aren't infringing on people's rights."

This article originally appeared at Forbes.com.

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62 responses to “Does Legalization Make Marijuana-Detecting Dogs Obsolete?

  1. the head of the Drug Enforcement Administration warned that marijuana legalization is bad for dogs

    Absolutely, those dogs would be much better off being shot by cops.

    1. Yeah, that is rich. The head of the DEA being worried about dogs’ welfare.

      1. “New dogs are expensive (about $15,000 each if fully trained, according to the Colorado Springs Gazette)? ”

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  2. “It basically goes back to the Fourth Amendment prohibition on illegal searches,” a police spokesman told the paper. “We want to make sure we aren’t infringing on people’s rights.”

    “In ways that can come back to bite us”

    FTFY

  3. Why can’t we have drug-sniffing camels?

    1. Too many “camels-in-tow” jokes.

  4. If dope were truly “legalized” (meaning you can buy what you want and where you want to), the pigs would finally have to toss in the towel.
    Until then, they owe entirely too much benefit to the quasi-legalization to give up *ANYTHING*.
    They will claw and grab at whatever they can in the hopes of keeping that budget high and keeping pigs in the union and on the street.

    1. It’s almost like they are … addicted to their power!

      Funny that.

    2. Well, they still have all the other drugs too. So they just needs dogs that aren’t trained to find pot.

    3. If, as it seems from your comment,you are in favor of legal cannabis, then I would ask you please not to refer to it as dope. Dope is heroin and cannabis should not be confused with opiates. It makes a difference how you say things and how they are perceived by others. Thank you.

  5. You can say the last six paragraphs again.

  6. I would imagine they would still be used for searching schools.

  7. . . . (2) that marijuana is present in an amount greater than one ounce; and/or (3) that the suspect is manufacturing or distributing marijuana.”

    Oh, that’s simple. These very same cops, without a trace of shame or self-awareness, will now claim that the dogs could *never* detect trace amounts of marijuana. So if they alert then there *must* either be other illegal drugs or more than the legally allowed amount of MJ present.

    And of course, if nothing is found, then the dog detected trace amounts of some *other* drug that is still illegal.

    1. I guess I should have read this more closely before posting below.

  8. What, no hat tip? I was asking this question last year when they legalized recreational MJ in Washington.

    I was asking what the legality of a search would be if a drug dog in the Ferry lane got a “hit” on marijuana– because they’re all trained out the wazoo to hit on MJ, right?

    1. I was sitting in the Ferry lane on 4th of July when the dogs came by and they said the dogs were sniffing for explosives. I noted that it was the 4th of July and people might have fireworks in their car. Guy didn’t answer.

      1. They lie. They’re looking for drugs, period, the end.

        1. In a lot of towns it’s illegal to possess fireworks.

  9. Robert Altemeyer, in his book The Authoritarians, describes the authoritarian in ways that resemble the typically unprincipled prohibitionist:

    “They are highly submissive to established authority, aggressive in the name of that authority and conventional to the point of insisting everyone should behave as their authorities decide. They are fearful and self-righteous and have a lot of hostility in them that they readily direct toward various out-groups. They are easily incited, easily led, rather un-inclined to think for themselves, largely impervious to facts and reason and rely instead on social support to maintain their beliefs. They bring strong loyalty to their in-groups, have thick-walled, highly compartmentalized minds, use a lot of double standards in their judgments, are surprisingly unprincipled at times and are often hypocrites.”

  10. This is all, of course, spectral evidence. Just like the girls in Salem, the officers and their dogs can sense things that we mortals cannot. By its nature, such evidence is untestable and non-reproducible.

    In light of the legalization, they will attempt to quantify the evidence. “The speed of the alert indicated an amount more than was legal.” “The odor that I smelled was much stronger than usual.”

    1. I’m sure dogs are capable of making remarkable distinctions based on smell. But the idea that they can tell if there is more than an ounce or not is just absurd. Even if they could do so under ideal conditions, there are so many factors like how well it is wrapped up, how stinky the stuff is.

  11. I was watching some of Cocaine Cowboys between games yesterday. Laughed hard when they were spraying cocaine mist everywhere fences, lightposts, buses – just to drive the dogs and cops nuts.

    1. Wow, that must get expensive. Back in the day we just soaked those useless cannabis leaves in iso-alcohol and used a spray bottle…I guess that would qualify as misting. One guy I knew wanted to plant a bunch of trees in his yard so he called the police snitch line and told them that he knew someone who had buried a large amount of cannabis in his yard at least 3 feet deep. Then he sprayed the iso-alcohol cannabis extraction where he wanted to put the trees. The cops came around and the dogs “alerted” and they dug and the dug and they dug and they didn’t find anything. But they did leave all those holes ready to plant trees. Unfortunately the plan backfired because the cops said he made a “furtive movement” and shot him dead when they first showed up.

  12. They never call the drug dogs when I get pulled over. Though there’s a very good reason for this. When I’m in my truck guess what else happens to be in my truck? My dogs. Keeps cops from wanting to search the vehicle or calling in canine units because there will definitely be a false positive alert from the dog when my two start barking.

    1. Good idea about the dogs. I wonder if any interstate smugglers have had that idea. I also wonder how often drug dogs are really called to traffic stops. It is not something I have ever seen. Seems like it is something that happens a lot in some particular places and very infrequently in others.

      1. I think it’s just when they want to search your car, but they know they couldn’t get a real warrant. Just call in a dog and have it bark, or sit, or something. Wham! 4rth amendment “loop hole” is fixed.

        1. Except in WA where (in addition to legalizing mj) our state constitution nullifies the ‘motor vehicle warrant exception’

    2. When I’m in my truck guess what else happens to be in my truck? My dogs.

      Mrs. Dean got her rental car sniffed at some border patrol checkpoints last year, but when she was moving the dogs (an AmStaff and two Staffordshire Bull Terriers), for some reason the K9 officer wasn’t interested.

      I don’t think it was concern about a “false positive”, since anyone worried about false positives wouldn’t use dogs in the first place.

  13. Do dogs really eat marijuana baked goods? I’d figure their sense of smell would make it easier for them to tell the difference. Then again I am not up to date with the latest edition edibles, so maybe some pot bacon is out there that dogs are getting in to.

    1. If they’re trained right, they won’t eat anything that their handler doesn’t give them personally.

      1. That’s a really big ‘If’, RC

    2. I have seen dogs who ate cannabis food. It was kind of funny. Probably would have been troubling if the owner hadn’t known what was going on. But didn’t seem to particularly trouble the dog or cause any problems.

      All of these supposed worries about this stuff is really trivial and silly. Yeah, your dog or kid might eat some pot food without meaning to. What’s the worst thing that could happen?

      1. Do you really want to know the worst that could happen? Mmmm-kay:
        http://www.thedenverchannel.co…..ot-cookies

        Is dead bad enough? Not the kid, grandma.

        1. Mentally disturbed grandma commits suicide by undisclosed method. OK.

  14. What use is a pot-sniffing canine when pot is no longer contraband?

    The dog like that could come in mighty handy if you misplaced your bag. BTW, my GSD turned two yesterday.

  15. A former cowoworker of mine is married to an LEO (incidentally, he is a K9 officer). My friend is against legalizing marijuana because additional resources and training would be needed to conduct roadside sobriety tests. My response was that personal liberty is not to be restricted by the need for additional police training.

    1. It’s worked out just fine here in WA. I challenge him to show me the drawbacks

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  19. Marijuana legalization should make any and all law enforcement resources that are for marijuana prohibition to be completely banned. We have pointlessly spent way more then ever should have been spent on marijuana prohibition. It is and always has been a wasteful, costly, terrible law that should have never been a factor in America. In no way, shape, or form has the war on drugs been any success. Free this amazing plant and let freedom ring.

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  24. The dogs are worthless- something I pointed out was an awesome unintended consequence of our legalization of MJ

    here in WA we already place immensely larger restrictions on law enforcement searches etc than almost any other state and federal operatives… Now , doorway sniffs, sniffs of cars – in WA a warrant is still required unlike most of America where the ‘motor vehicle exception’ applies and no warrant is needed – whether these sniffs are done by cops or dogs are useless now!!!!!!!

    It’s been an awesome development

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  26. Poor dogs will be out of a job! Now they’ll have to go back to being mere pets.

  27. The most sensible thing to do with the redundent dogs, & their handlers, is to retrain them as cancer detectors, because early detection of a cancer gives patients a much better chance of survival.

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