Drug-Sniffing Dogs May Have A Harder Time With Passage Of Amendment 64

Source: The Coloradoan
Date: December 30, 2012
By Robert Allen

Now that anyone over 21 can have marijuana, police officers across Colorado are acclimating to the idea that it’s OK for people to possess small amounts.

But drug-sniffing dogs may have a harder time getting that message.

“It’s going to be a tough time for Fido’s nose,” Denver lawyer and 9News legal analyst Scott Robinson said. “What are you going to tell him, ‘It doesn’t count anymore?’ “

Nine police canines are on active duty in Larimer County, and four of them operate out of Fort Collins Police Services. They can sniff for drugs such as cocaine, methamphetamine and marijuana.

The dogs often are used to find probable cause to search, for example, a suspicious vehicle. A dog is walked around the vehicle to sniff the air next to it, giving an alert signal such as digging at an area of the car if it senses an illegal drug.

But if a police dog has been trained to alert on a substance that is legal, it could be seen as overintrusive.

“This is definitely an area of concern we are looking at,” Larimer County District Attorney Larry Abrahamson said in an email. “Obviously if a dog detects marijuana, it may not be a crime if under one ounce – depending of course on where it is located.

“I am sure DAs and law enforcement agencies will be discussing this over the next few months.”

Since voters in November passed Amendment 64, adults over 21 can possess up to an ounce of marijuana as well as up to six pot plants and whatever those plants yield; anything more than an ounce is to be kept in the growing facility.

A Nose For Crime

A police canine with training costs about $13,000 plus ongoing expenses. A healthy dog will serve for seven to nine years.

Fort Collins Police Capt. Jim Szakmeister said the new laws could affect canines currently trained to sniff for marijuana, and it’s unlikely they could be retrained not to sniff for it.

“We’re into uncharted territory here,” he said. “We want to be using common sense and practicality as we enforce the law.”

Meanwhile, the dogs continue to be used as they were before the new marijuana laws.

“All K9s are still being used to search for drugs. That will not cease,” Fort Collins police Lt. Dave Haywood said in an email. “These dogs are trained to search for a wide variety of dangerous drugs and narcotics.”

Larimer County Sheriff’s Office declined to comment on whether the use of police dogs will be affected, deferring to the district attorney’s office.

The dogs, usually German shepherds or Belgian Malinois, not only sniff for drugs but also track and apprehend suspects. They even work for crowd control.

“They’re valuable,” Szakmeister said. “Especially on the one-time occasion where there may be an armed suspect and you send a dog instead of an officer.”

Fort Collins defense lawyer Derek Samuelson said the dogs’ “highly-developed sense of smell” probably could differentiate between marijuana and other drugs and even quantities of marijuana.

“Even if they have the ability to make those distinctions,” he said. “I seriously doubt that any of those dogs have the ability to communicate to their handler, ‘Hey, it’s cocaine that I’m smelling rather than marijuana, or, if it’s marijuana I’m smelling, (a) quantity greater than what’s permitted under the law change.”

Up To The Courts

Ultimately it will be up to the courts to decide whether Amendment 64 impacts the use of police dogs for searches.

“This is a really complicated issue, and I think it’s unclear how the state courts are going to interpret Amendment 64 and its impact in state court,” Samuelson said.

Robinson said that because possessing more than a certain amount of marijuana remains a felony, and because it’s still illegal under federal law, he doesn’t foresee a change.

“I think it would hold up,” he said. “Because the vast majority of things they’re trained to detect are still illegal.”

The Weld County District Attorney’s Office declined comment on the impacts of Amendment 64 on drug-sniffing dogs, and Boulder County District Attorney’s Office didn’t respond to requests for comment by press time.

Meanwhile, the U.S. Supreme Court is expected to decide in the next six months on two cases directly impacting the use of drug-sniffing dogs.

Florida v. Harris involves whether a well-trained drug dog’s alert is insufficient to establish probable cause for a vehicle search. Florida v. Jardines involves whether a dog sniff at a suspected marijuana grow house’s front door is a Fourth Amendment search that requires probable cause.

Lawyers say canine searches can be complicated issues, even without Amendment 64.

“I don’t think this is going to be sorted out at any time in the near future,” Samuelson said. “As far as the canine sniff issue goes, I imagine as is often the case with Supreme Court decisions, they will raise more questions and breed more issues than perhaps they resolve.”