Wednesday, April 6, 2016
The question in the title of this post is posed by a student in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform as a preview to his in-class presentation/discussion on Fouth Amendment doctrines. The student has authored this preview blurb to go along with links to assembled background reading:
Warrantless searches are per se unreasonable subject only to a few specifically established and well-delineated exceptions. Over the last several decades, many of these exceptions to the protections of the Fourth Amendment have either revolved around or are tied to the presence of marijuana. The “Plain Smell” or marijuana from an officer is firmly supported among circuit courts as sufficient for granting probable cause for a search. The Supreme Court has upheld the use of drug detection dogs during traffic stops to generate probable cause to search a vehicle. When there is marijuana in a location where marijuana is illegal, police officers have a justification for a warrantless search.
With the current legalization of marijuana in many jurisdictions, these established exceptions and practices are being turned on their heads. However, the movements away from these established practices are inconsistent and uncoordinated. When dealing with drug detection dogs, some agencies are retiring established dogs and training new ones while some agencies are attempting to retrain their established dogs. But the proper course of action is legally and procedurally uncertain. To retire and retrain is expensive while it is unknown whether a drug detection dogs will remain effective upon retraining or if they can even be retrained. Is it impossible to teach an old dog new tricks?
Two articles on what is happening to drug dogs in jurisdictions where marijuana has been legalized:
An article which further examines marijuana legalization on drug dogs and wades into the discussion of automobiles searchs on the basis of marijuana:How medical marijuana legalization has affected the probable cause generating effect of marijuana odor in Arizona: