Washington Police Retraining Drug Dogs Not To Sniff For Marijuana After Legalization

Recently, the Supreme Court reiterated that police may search a suspect when a trained drug sniffing dog indicates that the suspect is carrying drugs or other illegal materials, and “all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” Thus, if police wish to search a suspect for drugs, but lack a constitutional basis to do so, a drug dog can sniff the suspect and provide police with probable cause for a search if the dog “alerts.”

In Washington state, however, it is no longer a crime for someone of legal drinking age to carry up to an ounce of marijuana — and that changes the constitutional status of dog sniff. If a dog is trained to sniff out marijuana and cocaine, and it alerts after sniffing an adult suspect, that no longer would lead a “reasonably prudent person think that a search would reveal contraband or evidence of a crime” because it is likely the dog only reacted to the presence of marijuana on the suspect. Marijuana sniffing dogs cannot no longer provide probable cause that a suspect is engaged in criminal activity, because the dogs are trained to alert when the suspect is doing something that is no longer illegal under state law.

As a result of this constitutional dilemma, several Washington state police departments are retraining their drug sniffing dogs:

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