Marijuana-Trained Canines After Legalization

Can you use a marijuana trained dog after your state legalizes marijuana?

This question came from an officer in Kansas. The officer said, “Our department is implementing a brand new canine program. And apparently the dog is going to be proofed on marijuana. Now currently, marijuana is illegal in Kansas. So far, so good. But what happens if the state legalizes recreational marijuana? Are we still good with the pooch? What if it alerts on a car? Can we search it still and make sure that they have under the legalized limit?”

All right, let me just tell you what’s going on here. If your dog is proofed on marijuana today, and imagine that on January 1 of next year, your state legalizes marijuana. Are you going to be able to do a free air sniff of a car? And with that dog, the answer is most likely “No,” because the problem is, it’s going to alert to a legal substance.

That is not in line with Illinois versus Caballes. The reason why the Supreme Court said that a dog sniff is not a search under the Fourth Amendment is because it invades no legitimate expression of privacy, because it’s alerting to a substance that is not legal to possess. So a person possessing cocaine, for example, does not have a legitimate expectation of privacy in the cocaine. There is legitimate privacy interest in the car, and so forth. But that’s not what’s going on here. It’s just the dog sniffing the air around the car. If the state now legalizes marijuana, they now do have a legitimate expectation of privacy in that item. That is their property. They are allowed to own it.

You might think to yourself that it’s still illegal under the federal law. Well, I have to tell you, for most cops, that’s not your problem. You are not deputized as federal law enforcement officers. You cannot just go out there and start enforcing federal law, unless you are deputized or you are on a task force and you have some creds from the FBI.

There are other exceptions, but generally speaking, you cannot just go out there and enforce federal law. So it doesn’t matter if it’s illegal at the federal level. What matters is what you are enforcing. You are enforcing state law.

Now the argument comes up, “But Anthony, the dog alerts. Why can’t we just make sure that they have less than an ounce?” Let’s say that’s what your state has authorized. Well, there is no reason to search a car, just to make sure that someone’s not violating the law. There is no exception that exists like that.

Give me any other scenario where you can just make sure that people are not violating a certain law, or that lets you see prescription pills. And are you allowed to search the car now just to make sure that they’re not violating any prescription pill law, that they don’t have more than they’re supposed to? Or that they don’t have a fraudulent prescription? I mean, the point is, it doesn’t exist so that’s not going to work.

Now in some situations, maybe it will work. Maybe if the vehicle is occupied by people who are all under 21. Well, they’re not supposed to have marijuana in a car probably. Your state may make 21 the smoking age for marijuana, but if there’s an adult in there, that adult can have it. So that may not work.

Maybe you smell marijuana and you ask them, “Hey, do you have any marijuana in here?” And the person says. “No.” Well, maybe the court will find that that is evidence to you that they’re actually violating your laws because they’re not admitting to the marijuana. So maybe they do have over an ounce. Maybe there’s an overwhelming smell of marijuana, I don’t know. But the point is, you had better point to something that’s illegal, not just the fact that you want to make sure and that’s the problem here.

Other states have confronted the same issue. California and Colorado have all come to the same conclusion that you cannot run these dogs around cars as a matter of routine if they’re marijuana approved. I also recommend to other agencies that are considering getting canines to not proof those dogs on marijuana because legalized marijuana, unfortunately, depending on how you look at it, is coming to a town near you.

There it is. I hope it helps. If you have any follow up questions let me know. I really do appreciate it. As always, my friends, stay safe.