Colorado Supreme Court Rules Police Need Probable Cause Before Using Drug-Sniffing Dogs

Is it time to call off the hounds?
Colorado Supreme Court Rules Police Need Probable Cause Before Using Drug-Sniffing Dogs
Daria Serdtseva/ Shutterstock

In many ways, the legalization of marijuana is an ongoing project, even in states where possession has already been made legal. That’s because after weed is legal, there are all sorts of other legal questions and implications that arise.

The legality and role of drug-sniffing dogs is one example. Prior to legalization, K-9 units were typically trained to detect a broad range of illegal substances. And that included cannabis.

But when weed becomes legal in a state, the legal system must suddenly figure out what to do about these dogs. Specifically, state legal systems must determine if it’s still legal to have dogs alert cops to the presence of legal amounts of marijuana.

These are questions being asked in Colorado. And now, the Colorado Supreme Court has made its decision. In a new ruling, the state’s courts have decided that drug-sniffing dogs can no longer be used by cops if they don’t have probable cause for a search.

Colorado Supreme Court’s New Decision

The new decision states that cops can’t use pot-sniffing dogs before they have first established probable cause that a crime has been committed.

This is a big break from the past. Prior to this decision, drug-sniffing dogs were often the mechanism through which cops created probable cause. Basically, if a dog alerted cops to drugs, that in itself authorized a search.

But cops in Colorado can’t do that anymore. At least not with dogs that are trained to detect cannabis. From the sounds of things, cops will still be able to use dogs as long as they are not trained to detect weed.

The main reason for the new decision is that K-9 units are trained to signal if they detect illegal substances. But the dogs don’t distinguish between weed or anything else. As a result, dogs trained to smell weed pose a threat to peoples’ right to possess marijuana.

“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.”

It seems likely that police dogs will not be trained to detect cannabis anymore. But it’s unclear what will happen to dogs already trained to smell weed.

According to the Canon City Daily Record, approximately 20 percent of Colorado’s police dogs are currently trained to alert cops to the presence of weed.

A Tight Decision

Interestingly, the court’s decision was a close call. Specifically, the decision won by a narrow 4-3 margin.

Much of the minority’s dissent came down to concerns over federal law. Namely, the conflicts between federal and state law. Under federal law, dogs can still be used to sniff out weed. But now, that’s no longer the case in Colorado.

“I believe the most significant aspect . . . today concerns the question of federal supremacy,” the minority opinion said.

Colorado’s new ruling will not apply to federal agencies operating in the state. In many ways, all of this highlights the ongoing tensions between federal and state cannabis laws.

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