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Marijuana Legalization is Putting Some Drug Dogs Out of Work

To date, the following eleven states have legalized recreational use of marijuana:  Washington, Oregon, California, Alaska, Nevada, Colorado, Illinois, Michigan, Maine, Vermont and Massachusetts.  As those and other states and cities relax their drug laws, the highly trained dogs used by their police departments to sniff out narcotics can’t be relied on to smell the right thing.

It generally costs a law enforcement department about $6,000 to purchase a working dog and thousands more to train it.  The drug dogs are usually trained to detect numerous drugs, including marijuana, cocaine, heroin, ecstasy and methamphetamine.  So, when a dog alerts, it simply indicates the presence of one of those five drugs.  In those states where marijuana has been fully legalized, a drug dog’s alert could mean it smells only marijuana.  Since marijuana is legal in those states, the dog’s alert would not give rise to probable cause to search a person or their vehicle for illegal drugs.

Thus, in several states where marijuana is fully legalized, including California, Oregon, Maine and Vermont, most newly acquired drug dogs are not being trained to alert to the smell of marijuana.  And, some other states where recreational marijuana use is not legal have started to omit marijuana from the scents dogs are trained to detect.

A recent Colorado appellate court decision underscores the dilemma when using trained drug detection dogs in states where marijuana is fully legal.  In People v. McKnight, Officer Gonzales saw a truck parked in an alley. The truck left the alley and eventually parked outside of a house for about fifteen minutes. The house had been searched about seven weeks earlier and found to contain illegal drugs. When the truck drove away, Officer Gonzales followed it, saw it turn without signaling, and pulled it over.

McKnight was driving the truck. Officer Gonzales recognized McKnight’s passenger from previous contacts with her, “including drug contacts” involving the use of methamphetamine. At Officer Gonzales’ request, Sergeant Folks came to the scene with his certified drug-detection dog, Kilo. Kilo was trained to detect cocaine, heroin, ecstasy, methamphetamine, and marijuana. He indicates that he has detected the odor of one of these substances by exhibiting certain behavior — barking, for example. Like all drug detection dogs, Kilo’s indicative behavior, however, does not vary based on the particular substance or amount of the substance he has detected.

When Sergeant Folks deployed Kilo to sniff McKnight’s truck, Kilo displayed one of his trained indicators. Officers then told McKnight and the passenger to get out of the truck, searched it, and found a glass pipe commonly used to smoke methamphetamine.

After the district court denied McKnight’s suppression motion, the case proceeded to trial. A jury convicted McKnight of both counts.

The appellate court reversed Knight’s conviction.  In doing so, the Court noted: “[b]ut although Kilo’s alert increased the likelihood that McKnight’s truck contained evidence of a crime, a significant level of ambiguity arose from the combination of Kilo’s training and Colorado’s marijuana laws. At bottom, Kilo’s alert communicated only that he detected either a legal substance or an illegal substance. That information would not, by itself, warrant a person of reasonable caution to believe that McKnight’s truck contained contraband or evidence of a crime.”

The court also cited to an earlier Washington State case , State v. Shabeeb, 194 Wash. App. 1032, ¶ 20, 2016 WL 3264421, at *3 (Wash. Ct. App. 2016) (unpublished opinion) which observed “[t]he State concedes and we agree that since the decriminalization of marijuana, a K-9 alert standing alone no longer establishes probable cause when the K-9 was trained to alert on multiple narcotics, one of which is marijuana.” (emphasis supplied).

Due to the lack of nationwide uniformity concerning the legality of marijuana, the laws and legal decisions around the use of drug dogs a patchwork, leaving many states struggling over the issue.  Some states have relegated their marijuana-trained drug dogs solely to applications where although legal to possess, marijuana remains off limits, such as correctional facilities and schools.

And, in anticipation of the impending full legalization of marijuana in their locales, many law enforcement departments nationwide are dropping marijuana from their drug dog training programs.

Recreational use of marijuana currently is illegal in Florida.  If you’ve been arrested for misdemeanor or felony possession or trafficking of marijuana, it’s important you contact a Jacksonville criminal defense lawyer knowledgeable about the applicable laws and potential defenses you may have that could result in your charges being reduced, or dropped altogether.    Doing so will give you the best chance of avoiding a criminal conviction, jail or prison, or even probation, with its monthly reporting, fees and drug testing.  Call me for a free consultation to discuss how I can help you with your marijuana case in Duval, Clay, Nassau, Baker or St. Johns Counties.