Appeals court ruling complicates use of pot-sniffing dogs
October 26, 2017
Colorado law enforcement agencies are reassessing their use of drug dogs following a Colorado Court of Appeals ruling.
In a Moffat County case stemming from 2015, the appeals court ruled that police did not have probable cause to search a vehicle based only on the alert of a drug dog that was trained to alert to marijuana as well as other drugs. Since marijuana is generally legal in Colorado and the dog could not signal whether it smelled marijuana or another substance, the appeals court ruled that police did not have probable cause for the search.
This has been an issue that law enforcement leaders started thinking about in November 2012, when Colorado voters approved an amendment to legalize recreational marijuana, said Larimer County Sheriff Justin Smith, who is also president of the County Sheriffs of Colorado. Since then, the discussion has been that pot legalization would eventually greatly reduce the use of detection dogs in the field, he said.
Many big law enforcement departments, like Smith’s, have been quick to transition away from drug dogs trained to pick up marijuana. And that switch has certainly been very expensive for some agencies, as a quality, trained drug dog can cost $5,000 to $10,000, he said.
The challenge, however, is that marijuana is still not legal in all circumstances, such as in large quantities or in the possession of minors. But the dog doesn’t give a different alert if it’s under 2 ounces or more than 10 pounds of marijuana, said Smith. And it doesn’t give a different alert for different substances.
But the appeals court ruling doesn’t mean that authorities will universally want to transition away from marijuana-detecting dogs. Those dogs can also be helpful in other environments, such as if law enforcement is looking specifically for illegal marijuana operations — which have recently proved to be prevalent in the mountainsides of Garfield County and the Roaring Fork Valley.
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Not all Colorado law enforcement agencies have been able to quickly transition away from dogs trained for marijuana. More remote agencies with smaller budgets are more likely to be stuck in the interim and waiting until one of their dogs retires, said Smith.
The Garfield County Sheriff’s Office is about to retire its two detection dogs in the next year due to their age, and after that the office will probably transition to dogs that aren’t trained in marijuana detection, said Sheriff Lou Vallario.
Glenwood Springs Police Chief Terry Wilson said one of the department’s detection dogs was retired about a year ago and the second is about one or two years away from retirement, as well.
“In the future it will definitely affect where and how we go about getting a replacement dog, as we will probably look for some not trained in alerting to marijuana,” said Wilson. “That’s more of a future issue for us than a current issue right now.”
Carbondale defense attorney Chip McCrory said that he would “absolutely” call on that appeals decision if he has a client in a similar situation. That is now valid, binding law in Colorado, he said.
In the Moffat County case, officers did not have any other evidence, aside from the detection dog’s alert, indicating the presence of illegal drugs.
A search turned up a glass pipe commonly used to smoke meth, and the suspect was convicted of possession of paraphernalia. The ruling overturned that conviction.
Under different circumstances the officers may have more to go on, such as an admission of drug use from the suspect or the presence of syringes, in which case the search might have held up, said the defense attorney.
Wilson said that any warrant would have to include the information that the dog is trained to sniff for marijuana, as well, and it would come down to a judge determining if the totality of the circumstances warranted the search.
Drug dog training facilities across the country have been catching up to this development, offering customized dog training for states that have legalized marijuana, said Wilson. “It’s been a bit of a revolution for the whole industry, I’d say, in our profession, and K9s are no exception.”