Numerous police departments in New Mexico are the latest to lament the retirement of dogs that cannot make the distinction between cannabis—now legal in many states—and illegal drugs. The ramifications of using K9s to sniff out cannabis poses serious legal problems.
On June 29, the Tucumcari Police Department posted a long “eulogy” on Facebook announcing the retirement of Aries, the latest drug-sniffing dog to be retired—blaming the legalization of adult-use cannabis.
“We would like to take a moment to congratulate K9 Aries on his retirement effective today, June 29, 2021,” they wrote. “With the legalization of recreational marijuana, K9 Aries is unable to continue his function as a narcotics detection dog.”
Last May, KOB 4 Investigates featured a piece on how the Farmington Police Department planned to retire all its drug-sniffing dogs. Why? Because using the dogs would legally destroy efforts to establish probable cause.
“Now marijuana is legal—if the dog alerts on it, and we got a search warrant, we’d be violating somebody’s rights. So that meant the easiest, simplest thing was to just stop using those dogs for that purpose,” said Farmington Police Chief Steve Hebbe.
New Mexico State Police will be forced to retire all nine of its K9s that were trained to detect marijuana. “Once the new canines are trained, the handlers will have the option of retiring their current assigned canine to their home, or we will look at other options to the likes of donating them to other law enforcement entities outside of the state of New Mexico who have yet to legalize marijuana,” the department said in a statement.
A fiscal impact report estimates that replacing all nine dogs that work with the state police with new dogs—trained to sniff out drugs minus the marijuana—would cost about $194,000. It’s unclear if the dogs can be retrained to avoid sniffing cannabis, or if it would be just as expensive. Once dogs have been imprinted with an odor, it’s difficult to undo. And the problem is they need dogs now.
Meanwhile in upstate New York, Chautauqua County Sheriff James Quattrone doesn’t believe any of his department’s K9s will retired after legalization in his state, but acknowledged that they probably can’t be retrained. “… There does not exist any legally substantiated examples of a canine being retrained or ‘cleaned’ off a previously imprinted odor,” he said last month.
Should K9s Be used to Sniff Out Drugs in the First Place?
Long before the legalization of adult-use cannabis, using drug-sniffing dogs to establish probable cause was challenged in the Supreme Court periodically, with varying results.
A few years ago, Ohio schools deployed K9 units to sniff out drugs in children’s lockers, raising ethical questions. It was the school’s knee-jerk reaction to “The Great Vaping Scare” that began in late 2019, following a wave of serious lung injuries due to dangerous additives in unregulated vape pens.
That year, it was announced that Mayfield City Schools decided to recruit drug-sniffing dogs into school hallways. Specifically, the schools are now bringing in dogs trained to detect ecstasy, cocaine, heroin, meth and cannabis.
Law offices across the country are eager to fight cases involving drug-sniffing dogs and vehicle searches, as there are layers of legal problems.
In Colorado in 2019, the Colorado Supreme Court ruled that police need to establish probable cause before deploying drug-sniffing K9s. Prior to this decision, drug-sniffing dogs were often used as the mechanism through which cops established probable cause. In other words, if a dog alerted cops to drugs, that in itself warranted a search.
“The dog’s sniff arguably intrudes on a person’s reasonable expectation of privacy in lawful activity,” Supreme Court Justice William Hood wrote in the majority’s decision. “If so, that intrusion must be justified by some degree of particularized suspicion of criminal activity.”
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