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Colorado Court Says Alert of Drug K-9 Not Sufficient for Police Search. The Same Rule Should Apply in Florida.

The War on Drugs may be the most counter-productive, fiscally wasteful policy in the history of humankind.  Yet, it forges ahead, as it does little to effect any change other than to redirect taxpayer money away from beneficial programs and increase the size of government.  With regard to marijuana, it is difficult to understand why any police officer would support the War on Drugs.  Any encounter with a “suspect” has inherent risks to a police officer.  Why would any officer want to risk his/her well-being to determine whether or not someone has a plant, or the flower from a plant?

On the other hand, marijuana cases are easy.  A police officer smells the distinctive odor of cannabis, searches a person or a vehicle, finds the marijuana and makes an arrest.  No thought, no investigative skills, no legwork required.  And it counts as an arrest like any other for statistical purposes.  It is so much easier and quicker than tracking down reluctant witnesses in a shooting or figuring out where the money went in a fraud case.

A recent case out of Colorado will make it a little more difficult for the police to make the easy, simple marijuana arrests that do nothing to benefit the public despite political claims that more arrests translate to a safer community.  Many marijuana arrests are the result of a trained K-9 walking around a vehicle after a traffic stop and alerting to the odor of marijuana or some other illegal drug which then gives the police officer probable cause to search the vehicle.  If the police officer finds illegal drugs in the vehicle, the officer will likely arrest one or more of the occupants in the vehicle.  The entire case can be wrapped up in a matter of minutes.

However, now that marijuana is legal in some states, what constitutes a constitutional search and seizure by the police has changed.  In the past, when marijuana was illegal, if the K-9 alerted to the suggestion that marijuana or some other drug was in the vehicle, that was indicative of illegal activity sufficient to permit a search by the police officer under the search and seizure provisions of the Constitution.  Marijuana is no longer illegal in Colorado so the odor of marijuana is not indicative of illegal activity.  Therefore, the odor of marijuana alone is not a legal basis to search a vehicle in Colorado.

What about Florida, where recreational marijuana is not yet legal?  Should the Colorado rules still apply?  They should.  Medical marijuana is now legal in Florida.  If a K-9 alerts to the odor of marijuana or a police officer smells marijuana coming from a vehicle, that no longer automatically indicates illegal activity because marijuana is legal for an increasing number of people in Florida.  Since the odor of marijuana could indicate perfectly legal activity, that odor alone should not result in a person losing his/her constitutional right to privacy.

One interesting issue is that K-9’s generally are not just trained to detect marijuana but other drugs such as cocaine, heroin and methamphetamine as well.  However, if the K-9 alerts to the vehicle, the K-9 will not be able to give a signal that distinguishes one drug from another.  If the K-9 is alerting for marijuana, that does not give the police officer probable cause to search the vehicle because marijuana is not illegal.  If the drug dog smells the presence of heroin or cocaine, that would give the police officer probable cause to search the vehicle.  But, the police officer would not know the difference based on the drug dog’s signal.  As a result, if the dog is trained to detect marijuana as one of the drugs the K-9 is taught to recognize, a signal by that dog cannot be used as the sole basis to search a vehicle because it might be a signal for a legal substance.  The police cannot invade one’s right to privacy over what is arguably a legal substance.

The solution seems to be to discontinue training drug dogs to detect marijuana.  At this point, there is really no reason for it, and throwing marijuana in with other drugs only serves to expose people to constitutional violations of their right to privacy by the police.

Back to Florida. If the K-9 alerts to the odor of marijuana, the police officer can ask the driver if he/she has a medical marijuana prescription.  If not, then the odor of marijuana would seem to indicate illegal activity.  However, the driver would have a right to remain silent and would not have to answer that question.  Without knowing whether or not the alleged marijuana is legal, a criminal defense lawyer would argue the police would not have a right to search a vehicle based on the odor of marijuana in Florida.