Colorado K-9s Need New Tricks as Pot Law Muzzles Sniffers

COLORADO: Like the good drug dog he’s trained to be, Vader barks and scratches the Chevrolet Suburban’s running board when he smells a bag of marijuana hidden between the doors.

Yet the mission for the 80-pound Belgian Malinois is unclear now that Coloradans 21 and older can legally possess as much as an ounce (28 grams), of marijuana. Several new dogs on his 10-member K-9 team won’t be trained to sniff out weed — while some, like Vader, will keep trying to nose out the drug.

“There are so many unanswered questions,” said Andrew Genta, a Colorado Springs police officer who is the K-9 unit’s head trainer. “There have not been any test cases to say yes or no we do not have the right to do this.”

With new laws that aim to treat marijuana possession much like that of alcohol, law-enforcement agencies in Colorado and Washington state are grappling with whether they should retrain their drug-sniffing dogs to ignore marijuana, retire older pooches who alert when they smell the drug, obtain new animals, or make no changes to their programs.

One issue is whether police can continue to use dogs trained to find pot without violating citizens’ rights, in an environment in which marijuana is legal under state law. Officers are also concerned that defense lawyers may use evidence found by such dogs to their advantage in court.

Probable Cause

“What’s going to come up is a case where a dog hits on a car with two pounds of cocaine,” said Sal Fiorillo, tactical operations lieutenant of the Colorado Springs Police Department’s Specialized Enforcement Division.

“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,” he added. In such a scenario, the lawyer may try have the evidence suppressed because the dog can’t differentiate between cocaine and marijuana.

A survey of the largest cities in Colorado and Washington found that K-9 units’ responses to legalization measures approved by voters last November vary as much as the breeds of dogs on their teams.

Some police departments won’t use animals that were trained to smell marijuana, Fiorillo said, adding that Colorado Springs’ K-9 unit will continue to use dogs like Vader based on advice from the local prosecutor.

A month ago, the Colorado District Attorneys’ Council started traveling around the state to instruct police officers that a drug-sniffing dog reacting to the smell of marijuana isn’t enough for probable cause, said Tom Raynes, the council’s executive director.

‘Legal Quantity’

“The issue is they could be hitting on a legal quantity,” Raynes said.

In Washington, the state’s Association of Prosecuting Attorneys wrote in a Dec. 4 memo that an officer seeking a search warrant based in part on a dog’s alert must disclose the canine’s previous training.

The memo, written by Pam Loginsky, the association’s staff attorney, recommends that search warrants based in part on a canine trained to detect marijuana include when the dog was trained. She also suggested listing what odors it’s trained to detect, that it “cannot communicate which of these substances s/he has detected” and that the dog “cannot communicate” the amount of the substance that’s present.

The Washington State Patrol won’t train new dogs on its canine team to sniff for marijuana, said Bob Calkins, a spokesman.

‘Search Warrant’

“In the past it used to be, if a dog alerted, that was probable cause for a search warrant,” Calkins said. “Now, along with the dog’s alert, we have to have an indication that there’s reason to believe it’s something other than marijuana.”

Indicators that provide probable cause for a search can include visible signs of other drugs, such as tools used for smoking methamphetamine like a bent, burned spoon, Calkins said.

There’s disagreement among departments in Washington and Colorado whether dogs can be taught to disregard an odor once they’ve been drilled to hunt out the scent for years. The animals give the same alert to all drugs they’re trained to find, including cocaine, methamphetamine, marijuana and heroin.

“Once you put an odor on a dog, it’s very difficult to get that odor off a dog,” said Fiorillo, the Colorado Springs officer. “We can’t train our dogs to bark if it’s cocaine, roll over if it’s marijuana, scratch if it’s methamphetamine.”

The Seattle Police Department is no longer training its dogs to recognize the odor of marijuana, said Sgt. Sean Whitcomb, a spokesman.

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