FUTURE USE? — Sonoma County Sheriff's Department K-9 Mako recently won second place in a narcotics sniffing competition, but as marijuana becomes legal, questions have been raised about the usefulness of alerts from dogs that have been trained to alert on a now-legal substance.

When Proposition 64 passed making recreational marijuana legal in California, law enforcement was faced with a brand new set of rules and regulations concerning the once illegal substance. But, in part due to the previously passed and longstanding medical marijuana (Proposition 215) ordinance, local police haven’t had to face a significant change in their operations.

“Any 18 year old with a claimed medical problem could go out and a get a medical marijuana card, could go out and legally possess it,” said Healdsburg Police Chief Kevin Burke. “People I would talk to in the medicinal marijuana industry would privately acknowledge that 90% of their customers were recreational users using the umbrella of medicinal, so from a law enforcement analysis and practical standpoint, it really already was in many ways legal, so it really wasn’t some huge shift for us.”

How can marijuana use still get you in trouble

While the list of infractions has shortened considerably, and the penalties for those infractions significantly lessened, it doesn’t mean anything goes. The selling of marijuana to minors is still a felony, but otherwise infractions are generally misdemeanors or less.

“If you sell it to a minor, it’s the one serious crime. Everything else, even if you exceed the one ounce limit for personal use or you are a minor in possession, quite frankly being a minor in possession of an alcoholic beverage is more serious than being a minor in possession of marijuana today,” Burke said.

According to Burke, education on what is allowed is still needed for the general populous, as he still often gets calls for people using marijuana in a way that is no longer illegal. Use of recreational marijuana is not allowed in public so there has been times where users have had to be educated, even though penalties are minimal.

“If someone were smoking a joint in the Plaza and we received a complaint about that, we would go down and treat that like a cigarette violation,” Burke said. “We would enforce our anti-smoking ordinance, which has much more teeth to it than what is left with marijuana law. Smoking a marijuana cigarette in a public place —  just like drinking alcohol — is not permitted even after 64, but our city’s anti-smoking ordinance is a more serious offense. If you were smoking a joint in the park we’d be citing you for that, the smoking piece.”

Local law enforcement grapples with role

While adapting to changing laws is nothing new, and adapting to the changes wrought by Prop 64 came as no surprise to most law enforcement outfits, that doesn’t mean some questions have still had to be sorted out.

“There was some question about, in the old days if marijuana smoke was coming out of a car and a police officer walked up on it, it was presumptively a reason to search the car,” Burke said. “We’ve had questions like that and the answer now is going to depend on the age of the person. If the person is an adult and the vehicle is not moving, it’s like smoking a cigarette there. We’d just walk on by. If it’s a minor we would do an investigation. So, there’s little things like that, but it hasn’t been a very significant transition.”

Issues with illegal or oversized grows, sales or packaging issues are handled by the state, and they are something Burke is not interested in getting involved in.

“The really big change has been in terms of the growing, manufacturing, selling side. That’s really the big change, and I don’t deal with that, that’s a state bureaucracy,” he said. “If you look at what police officers deal with, which is the individual with a joint or a small amount, that’s what we mostly encounter and that hasn’t been a serious offense in most police officer’s careers.

“Selling and growing, those more serious offenses that we would get involved in, has just sort of evolved into not being criminal. The state is going to have to deal with that, I’m not going to prioritize that at all. Essentially, when it comes to illegal marijuana activity the only one that is still a priority to us is the sale to minors, all that other misdemeanor stuff has ceased to be a priority to us. If we encounter it and it’s blatant and we have somebody complaining, we may or may not take action like we can or would do with any other minor offenses. We might warn, we might take no action,” he finished.

Police K-9s face a complicated future

Police dogs who have been trained to sniff out illegal drugs have become an important part of law enforcement, but when a previously illegal substance suddenly becomes legal, it can complicate the training and use of those dogs.

In Colorado, where marijuana has been legal for six years, the question has already been making its way through the courts.

In 2015, police officers in Craig, Colorado pulled over a truck containing Kevin McKnight. A police dog named Kilo alerted on the vehicle almost immediately, and a meth pipe with meth residue were found in McKnight’s possession. However, McKnight’s attorney’s argued that because Kilo had been trained to alert (and to have an identical alert) for a variety of drugs including marijuana, it was impossible for officers to know whether Kilo had alerted on a legal or illegal substance, nullifying their right to search McKnight and his vehicle.

The Colorado Court of Appeals three-judge panel agreed and tossed out his conviction, which was appealed to the state supreme court. However in May of this year Colorado’s state supreme court ruled in McKnight’s favor.

“The Supreme Court surmised that no matter how reliable his nose, Kilo could render a kind of false positive for marijuana. He has been trained to alert to marijuana based on the notion that marijuana is always contraband, when that is no longer true under state law. And historically, whether a drug-detection dog might alert on noncontraband drives whether the dog’s sniff constitutes a search implicating constitutional protections,” said a summary of the court’s judgment. “The court determined the dog’s sniff arguably intruded on a person’s reasonable expectation of privacy in lawful activity; therefore any intrusion had to be justified by some particuarlized suspicion of criminal activity. The Supreme Court held that a sniff from a drug-detection dog trained to alert to marijuana constitutes a search under the Colorado Constitution because the sniff could detect lawful activity (namely the legal possession of up to one ounce of marijuana by adults aged twenty-one years or older). Furthermore, the court held in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff. Because there was no such probable cause justifying Kilo’s search of McKnight’s truck, the trial court erred in denying McKnight’s motion to suppress.”

The concerns over the applicability of alerts that may include legal marijuana has seen some departments prematurely retiring their drug-sniffing dogs, and newer canine recruits are not being training to alert on the scent of marijuana in anticipation of it becoming legal nationwide.

Once a dog is trained to alert on a given substance it can’t be untrained. For now, the law is having to determine if those alerts can be meaningfully applied to legal searches and investigations. Trained drug sniffing dogs can cost upwards of $10,000 so replacing them can be daunting for smaller departments.

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