US: Courts increasingly restrict use of sniffer dogs in cannabis-related cases

The United States justice system is redefining the limits of police action with dogs in cannabis-related cases. Several state courts have ruled that a simple alert from a drug-sniffing dog is no longer a valid justification for a search or arrest. The main reason is that dogs cannot distinguish between cannabis — still illegal at the federal level — and hemp, which has been federally legal since 2018. These decisions reflect the direct impact of changes in cannabis laws and are forcing police and prosecutors to adapt their methods of action.

The discussion began more than five years ago, when American police began train dogs to ignore the smell of cannabis and some judges had ruled that the fact that a dog detected the odor of cannabis was not enough to justify a search.

The most recent case was reported by NORML (National Organization for the Reform of Marijuana Laws) and took place in Tampa, Florida. Judges from the Florida 2nd District Court of Appeals overturned a conviction for trafficking in cannabis because the prosecution failed to take adequate steps to distinguish whether the defendant was in possession of cannabis or hemp. A man had been convicted of drug trafficking after being intercepted at Tampa International Airport with a suitcase containing 50 vacuum-sealed packages of a “green, leafy” substance, which had been alerted by a drug-sniffing dog. Police sent one of the 50 packages for chemical analysis, and it tested positive for cannabis.

The defendant appealed his conviction, arguing that he believed the packages contained hemp products, which are legal both federally and in Florida. The court agreed, finding that there was no way to determine whether the defendant was transporting hemp or cannabis without analytical testing of all the packages.

Thus, the Court ruled that “legal hemp and illegal cannabis are indistinguishable by appearance, texture, and odor. (…) Because there is an identifiable risk of misidentification between legal hemp and illegal cannabis, where the contents of multiple packages must be considered to prove the quantity of illegal cannabis, the state cannot rely solely on appearance and odor to infer illegal cannabis in the untested packages and must perform chemical tests on each package of the green, leafy substance to meet the minimum weight requirement for trafficking. Otherwise, allowing the state to rely solely on the identification of similar packages of a green, leafy substance by appearance and odor would undermine the defendant’s presumption of innocence and erroneously deny the state’s burden of proving the identity and weight of the alleged substance,” the Court’s ruling reads. court ruling.

The decision was praised by NORML, which called it “a significant victory for justice and civil rights.”

A dog's alert no longer constitutes sufficient probable cause for a warrantless search

Similar situations have been happening in other states. Michigan Supreme Court ruled in 2022 that the use of sniffer dogs to detect the odor of cannabis in a vehicle was no longer sufficient to justify a search, since possession of cannabis for recreational use has been legal since 2018. The court recognized that dogs do not distinguish between legal and illegal cannabis, which compromises the validity of evidence obtained in these contexts. Illinois Supreme Court made a similar decision in September last year.

In Colorado, where cannabis has been legal for adult use since 2014, courts have also ruled against the use of dogs trained solely to detect cannabis. In 2019, the state Supreme Court ruled that evidence obtained through alerts from these dogs violated citizens’ constitutional rights, since the odor of cannabis no longer necessarily implies illegal activity.

Maryland followed suit. In 2021, a state court ruled that the smell of cannabis alone no longer justified searches of vehicles. The decision came amid the decriminalization of possession of small amounts of cannabis and the growing acceptance of the plant’s medicinal use in the state. Local authorities were advised to review their protocols for police dogs.

In Minnesota, courts have also ruled that dog alerts are not a valid reason for searches, especially after the legalization of medical cannabis and the decriminalization of recreational possession. Court rulings have forced a review of the training of drug-sniffing dogs, with some police departments removing animals trained exclusively to detect cannabis from service.

However, not all states are following suit. The Tennessee Supreme Court recently ruled to uphold searches based on drug-sniffing dogs, even though it acknowledged that the animals cannot distinguish between hemp and cannabis. The decision drew criticism from civil rights groups, who said it ignored evolving federal and state cannabis laws.

These divergent decisions among states reflect the complexity of the cannabis legal landscape in the U.S., with some states moving toward policies that are more aligned with science and constitutional rights, while others continue to uphold practices inherited from the war on drugs. For NORML, the trend is clear: “As more states legalize or decriminalize cannabis, courts are recognizing that traditional law enforcement detection methods are no longer compatible with the new legal reality,” said Nikki Fried, a board member of the organization.

With cannabis becoming increasingly accepted and regulated in the United States, the use of drug-sniffing dogs in law enforcement may soon no longer be a reliable tool.

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Laura Ramos

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With a degree in Journalism from the University of Coimbra, Laura Ramos has a postgraduate degree in Photography and has been a Journalist since 1998. Winner of the Business of Cannabis Awards in the category "Journalist of the Year 2024", Laura was a correspondent for Jornal de Notícias in Rome, Italy, and Press Officer in the Office of the Minister of Education of the 2018st Portuguese Government. She has an international certification in Permaculture (PDC) and created the street-art photography archive “What does Lisbon say?” @saywhatlisbon. Co-founder and Editor of CannaReporter® and coordinator of PTMC - Portugal Medical Cannabis, Laura made the documentary “Pacientes” in XNUMX and was part of the steering group of the first Postgraduate Course in GxP's for Medicinal Cannabis in Portugal, in partnership with the Military Laboratory and the Faculty of Pharmacy of the University of Lisbon.

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