Enforcement officers often use drug dogs trained to alert whenever they smell one of four things: cocaine, meth, heroin, or marijuana. But what happens when the odor of one of those four things is no longer illegal? What happens when the state decides to legalize marijuana?
Theoretically, the use of a dog trained to alert to all four odors should not result in probable cause to warrant a search. Afterall, the alert may no longer signal the presence of a crime. This is important because in order for the search to survive a challenge, the officer would need to have probable cause to believe criminal activity is present to conduct the search. The state may now consider the odor the dog alerts to legal — a small amount of marijuana.
Some argue that these dogs can be retrained to no longer alert to the odor of marijuana. Others voice concern that officers who rely on these dogs would be using false information to support a search. As a result, even a dog that is not listed as a four-odor canine may still have a background that could support a challenge.
This is not the only issue to arise involving drug sniffing dogs. Just a few weeks ago, a report was published about a narcotics dog that alerted to the presence of drugs at every single search. This meant that any officer who called in this dog for a sniff test of a vehicle during a traffic stop was almost guaranteed access to conduct a search of the car. Did all of these vehicles have drugs? No. Only 29% of the vehicles searched based on this drug canine’s positive alert resulted in the discovery of drugs. Upon further digging, the report noted that this was not a onetime issue. Drug dogs are often wrong. In another case, a dog who alerted for drugs 93% of the time was wrong in over 40% of his alerts.
So can you challenge a drug dog’s alert during a traffic stop? The answer is likely yes. To do so, you would need to gather information about what led to the stop and why the officer called in the drug dog as well as the drug dog’s training and past experience.