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Nose for marijuana could be liability for police dogs

April 26, 2013
photo - 
	 Photo by Gazette file
Photo by Gazette file 

In the Loveland police K9 unit, one drug-sniffing dog stands apart from the pack when it comes to marijuana.

His name is Shadow, and while fellow “K9s” perk up at the odor of pot, this Dutch shepherd stays chill — and keeps the hunt focused on the hard stuff: cocaine, heroin, methamphetamine and the like.

The introduction in March of a police dog trained to ignore marijuana was one agency’s answer to a hairy problem for drug enforcers in Colorado: What to do with costly “K9” units, now that voters have signed off on recreational marijuana use. It’s an issue that could reverberate through courtrooms across the state.

Before pot became legal in limited amounts with last November’s vote, a police dog’s nose alone could justify a search by police.

Now that pot is provisionally legal, the issue is poised to grow murkier, according to observers who see the issue as one more legal question left unsettled by the passage of Amendment 64, which allows Colorado residents over the age of 21 to possess up to an ounce of marijuana.

Problems could arise if police search a vehicle or house based on a drug dog’s nose, only to find a lawful amount of marijuana. If a judge were to agree the search was inappropriate, any other evidence seized by police during the disputed encounter could get tossed, legal observers say.

“I think it’s a legitimate concern,” said H. Patrick Furman, a former trial attorney and professor emeritus of law at the University of Colorado in Boulder. “You can’t have a dog that’s trained to detect something that’s perfectly legal and use that as a justification for a search.”

In Loveland, located about 50 miles north of Denver, the threat of investigations being scuttled by questions over search and seizure protocols was enough to prompt a change in the K9 program, said police spokesman Sgt. Justin Chase.

After consulting with the Larimer County District Attorney’s Office, police decided to replace retiring dogs with those trained to ignore marijuana.

The change could also reduce the department’s exposure to civil liability over traffic stops based on pot, Chase said.

“It basically goes back to the 4th Amendment prohibition on illegal searches,” said Chase. “We want to make sure we aren’t infringing on people’s rights.”

Other law enforcement agencies, including Colorado Springs police, say they have examined the issue but will continue with business as usual, confronting any problems on a case-by-case basis. In Colorado Springs, that decision was made in consultation with the 4th Judicial District Attorney’s Office, said Lt. Sal Fiorillo, who oversees the department’s K9 unit staffed by 10 dogs and their handlers.

Although Seattle police have re-trained dogs in the wake of a similar legalization measure in Washington, Fiorillo said it’s difficult to keep them off the scent, no matter how much reconditioning they receive.

Replacing dogs with those trained to ignore marijuana would be a considerable expense.

New police dogs can run between $6,500 for an untrained dog, to up to $15,000 for one that comes fully trained. That doesn’t account for continuing expenses related to food, veterinary care and other needs.

Even a dog trained to ignore pot may acquire a taste for the odor, because marijuana is often packaged alongside other illegal narcotics, potentially leading dogs to associate the scent with harder drugs, Fiorillo added.

Nor is it possible to train a dog to give different alerts based on the drugs it detects, Fiorillo said

As for legal arguments protesting searches, Fiorillo said police will generally provide other supporting evidence besides an odor of marijuana.

“When you’re going to run a dog by a car, you’re going to have other reasons to do that. It’s the totality of the circumstances,” he said.

Pueblo police say they have no plans to retrain or replace their sole drug-sniffing dog.

“We are working at the direction of our district attorney,” said Sgt. Dustin Dodge, a supervisor in the special investigations and narcotics unit. “Since we occasionally work with the Drug Enforcement Administration, it would be counterproductive to train off of the scent of marijuana for federal cases. When (and) if the District Attorney’s Office changes their stance on this, they will advise us further.”

The issue of pot-detecting dogs has led one Indiana-based kennel to offer to swap out pot-sniffing dogs in Colorado and Washington for those trained to ignore it. Police groups say swapping out dogs would be impractical because handlers and their dogs must develop a rapport to be effective.

Whether defendants end up beating charges because of drug-dog initiated searches remains to be seen, Furman said.

“These are questions that are going to have to play out in court,” he said. “A body of case law will develop based on criminal cases and civil rights suits.”

Contact Lance Benzel: 636-0366 Twitter @lancebenzel

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