Police Dogs Evoke New Controversy in Marijuana-Friendly States

From detective show dramas to Jay-Z lyrics, drug-sniffing dogs have become a widely recognized aspect of police work. In the past, these highly trained dogs have been bestowed not only with accolades from law enforcement, but legal status from the Supreme Court as not being an invasion into one’s expectation of privacy, and thus not a “search” for Fourth Amendment purposes.

But all of that may be changing soon.

Last year, the Supreme Court limited the use of drug sniffing dogs at private residences. While this doesn’t change their ability to sniff freely away at luggage or around cars, the police will need to meet a higher standard of probable cause (or your consent) before letting their dogs get their nose in your business at home. This development was rather monumental, considering that since the 80s police have been able to use police dogs to aid in searching for drugs with limited inhibition.

While limiting the use of dogs will likely not put them out of jobs, states that have legalized marijuana are forced to examine what place, if any, these pooches have with a police force. In Colorado, for example, where persons 21 years and older can legally posses 1 ounce of pot, the K9 units are put in a difficult position. For example, if a police dog alerts an officer to drugs on a person who is lawfully in possession, and that trigger leads to an unconstitutional, seizure, search, or arrest of that person, the police department faces potentially costly liability from violating that individual’s civil liberties.

This may not seem like too big of an issue since it there are many illegal drugs other than marijuana that dogs can detect. This fact, however, only makes the problem more complicated. Police dogs cannot be trained to differentiate between types of drugs by using different triggers. All the dog can do is bark, scratch, and dig when it detects a narcotic. A dog cannot be trained to roll over for cocaine, jump for methamphetamine and sit down for marijuana. The trigger is the trigger, and if it could have been set off by a legal substance, the officer ostensibly lacks probable cause to search. In essence, if someone is possessing several pounds of cocaine, which is illegal, and an ounce of marijuana, which is legal, a competent defense lawyer could get all of the evidence suppressed and the charges dismissed.

There are ways around this conundrum. In Washington, some police forces have stopped training new dogs to detect marijuana. The skill is simply not desired as marijuana is taking a lower priority to other more harmful narcotics. However, the question still remains: What will be done with the older dogs? They can’t unlearn smelling marijuana, and utilizing them for drug sniffing purposes may expose the police force to a myriad of lawsuits and complicated legal issues. Furthermore, even putting the dogs to work in other contexts, like bomb searches or searches for people near residences, may still lead to false triggers for drugs and therefore the potential for liability.

Moreover, these issues raise the question of whether we be using these dogs for drug searching purposes at all? Experts–and even advocates of drug sniffing dogs–admit that there is an alarming frequency of “false alerts,” where poorly trained officers and dogs essentially create probable cause by causing the dog to respond to their hand and not the presence of illegal substances.

These considerations, coupled with the developments in the legal landscape surrounding drugs and dogs, conjure an age-old question: can you teach an old dog new tricks?