Detection dogs are trained to use their senses of smell to perceive a variety of substances. Commonly used by law enforcement to sniff out the presence of illegal narcotics, the canines have come under controversy in Colorado, a state that legalized a once prohibited drug six years ago.
The issue has three key aspects: how courts have defined a dog sniff, how detection dogs are trained and the complex relationship between state and federal laws.
Legally speaking, in almost all circumstances, the use of a detection dog to sniff the outside of a vehicle or container is not considered a “search” that requires probable cause, as there is no intrusion required and dog will only alert to the presence of something illegal. Police can use detection dogs when they are suspicious that illegal narcotics may be present, but do not have enough evidence to search the area themselves. The detection dog alerting to the presence of an illegal substance can then provide sufficient legal cause for a follow-up search by law enforcement officers.
On the canine side, detection dogs are trained to alert to the presence of illegal narcotics, but not to differentiate between substances. A detection dog trained to alert to the presence of marijuana, cocaine, methamphetamine and heroin will alert to a tiny amount of marijuana in the same way as a pound of methamphetamine- meaning the handler does not know if the dog has detected a legal amount of marijuana or an illegal substance.
On a national scale, Amendment 64 represented a watershed moment for not only the state but also for the country when it came to recreational marijuana. Others followed Colorado’s example in approving similar measures. However, the legality of recreational cannabis runs in direct conflict with federal drug laws that still consider marijuana to be an illegal narcotic.
Referred to as “preemption,” state and federal laws in irreconcilable conflict means that federal law will prevail. To date, the courts have ruled that two sets of marijuana laws can co-exist. Marijuana is legal under Colorado law. However, federal agents can still enforce what they see as infractions.
A recent 4-3 decision by Colorado’s Supreme Court has created more controversy over state versus federal jurisdictions and how marijuana laws are enforced. The Court held that police need probable cause for a search when using a detection dog that is trained to alert to marijuana, as the dog may alert to the presence of substance that is legal under state law. The ruling put pot-sniffing dogs with “expertise” in identifying a decriminalized drug on a short leash, as it limits their use in situations where police suspect drugs may be present, but do not have enough evidence to perform a search themselves. Most dogs trained to sniff our marijuana have been granted early retirement and the vast majority of dogs working for law enforcement in Colorado are now are trained with the limitations of Amendment 64 in mind.
The crux of the quandary is identifying evidence of a crime before a search. In writing the majority opinion, Justice William Hood asserted that Amendment 64 expanded state constitutional protections to include marijuana possession. He and three other justices believe that using drug detection dogs that are trained to alert to marijuana in the same way as illegal substances is intrusive and unreasonable, considering that pot use is a lawful activity. Because the dog’s handler cannot tell if the alert is due to a legal or illegal substance, the dog sniff is a search that must be supported by sufficient evidence of criminal activity before being conducted.
Three justices in the minority saw the ruling as flawed and expose the state’s marijuana law to preemption by the federal government, putting the future of legalized pot at risk. Involvement by the United States Supreme Court is unlikely, leaving Colorado, and the many states that have followed in Amendment 64’s wake, to continue fine-tuning their now six-year experiment.