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:
The passage of I-502 made things difficult enough for the humans tasked with creating and enforcing the laws for legal marijuana. Now, try explaining the difference between “personal use” and “intent to sell” or the gray area between state and federal law to a dog.
That’s why many law-enforcement agencies around the state, including the Seattle Police Department and Washington State Patrol, will no longer be training their drug-sniffing dogs to alert for marijuana. . . .
Sgt. Sean Whitcomb said the Seattle Police Department is already taking steps to desensitize its dogs to marijuana through rewards and constant training.
Currently, some law enforcement agencies continue to use marijuana-sniffing dogs in Washington. As a memo from the Washington Association of Prosecuting Attorneys explains, however, these dogs can no longer be relied on exclusively to justify a search.