Drug-Sniffing Dogs Pose a Problem in States That Legalized Marijuana

August 22, 2013

By Jennifer Oldham

(Bloomberg Businessweek) -- Vader, an 80-pound Belgian Malinois with the Colorado Springs Police Department, knows his job well. 

At the scent of an illicit drug such as cocaine or marijuana, the dog barks and scratches, pointing officers to the stash. It’s a task he’s performed countless times over the last five years under Andrew Genta, the department’s head K-9 unit trainer. Now that marijuana is legal in the state, however, Vader’s job is becoming more complicated.

Voters in Colorado and Washington State passed ballot measures last November letting people 21 and over possess up to an ounce of pot. That’s left police departments in both states to decide whether to continue using canines that can detect the drug. 

“There are so many unanswered questions,” Genta says. “There have not been any test cases to say, ‘Yes,’ or ‘No, we do not have the right to do this.’ ”

Drug-sniffing dogs are taught to give the same response no matter what illegal substance they discover.

“We can’t train our dogs to bark if it’s cocaine, roll over if it’s marijuana, scratch if it’s methamphetamine,” says Sal Fiorillo, a lieutenant in the Colorado Springs Police Department. 

The animals also can’t differentiate between legal and illegal amounts.

“If a dog hits on marijuana, you don’t know whether you’re going to find one ounce in that suitcase or six pounds,” says Steve Davis, a police spokesman in Lakewood, Colo. 

And it’s not easy to train the canines to unlearn the smell of pot.

“Once you put an odor on a dog, it’s very difficult to get that odor off a dog,” Fiorillo says.

Patrolling with the animals currently used to sniff out drugs runs the risk of civil rights violations and lawsuits.

“The issue is, they could be hitting on a legal quantity,” says Tom Raynes, executive director of the Colorado District Attorneys’ Council. 

An attorney on Raynes’s staff is traveling around the state informing police that the canines alone will no longer be enough to establish probable cause—officers will have to have additional evidence to justify a search. Law enforcement is also concerned that using pot-sniffing pooches could give an advantage to drug traffickers. 

“What’s going to come up is a case where a dog hits on a car with two pounds of cocaine,” Fiorillo says. “The defense attorney will say that the dog wasn’t hitting on the cocaine, he was hitting on a half-ounce of marijuana, and that’s legal.” 

The lawyer could then move to have the evidence suppressed, and potentially get charges dropped, because the police can’t show that the animals are able to differentiate between cocaine and marijuana.

Police in Tacoma, Wash., aren’t ready to retire their four-footed marijuana sniffers. 

“There are several instances where marijuana is still illegal,” says officer Loretta Cool. “If you are under 21, you cannot possess marijuana. If you have more than an ounce, it’s illegal.” 

But half an hour north in Seattle, police have stopped teaching drug dogs to recognize pot.

“There’s constant training to make sure their sniffers are up to snuff, where we use real drugs from evidence and a dog is rewarded for sniffing it out,” says Sergeant Sean Whitcomb, a spokesman for the Seattle Police Department. “Marijuana is not something they are training on—that skill is no longer being reinforced.”

The bottom line: Police using dogs to sniff out pot risk lawsuits in Colorado and Washington, where small amounts are legal.