CARSON CITY, Nev. (KOLO) - In just a little over two weeks, recreational marijuana will be legal in Nevada. But that leaves some law enforcement tactics in a haze, specifically, what will be the role of the current narcotics dogs?
Rex has been a narcotics dog with the Carson City Sheriff’s Office for the past three and a half years and he is trained to do several things.
“He’s trained to find bad guys, find drugs, and track people,” Deputy Sheriff Jeff Pullen said.
During his time in the department, Rex’s job has been clear, especially when it comes to drugs. Rex is known as a five-scent narcotics dog.
“He detects meth, marijuana, heroin, cocaine, and ecstasy,” Pullen said.
But come January first, Rex’s job will become more difficult. In November, voters passed Question 2, which made an ounce of marijuana legal for adults over 21.
The problem comes from the fact that dogs like Rex don’t alert to an amount or type of drug. They just alert to scents. So come the first of the year, if Rex hits on something, it won’t be clear if it is a legal or illegal substance. That is where things get murky.
“One of the things you’ll hear police comment is they’ve lost the ability, simply because someone appears to possess marijuana, then to search for other drugs, or weapons, or whatever they may be interested in,” defense attorney David Houston said.
If Rex and other narcotics dogs can’t specify what substance they find, it raises the question of whether these dogs will still be useful to law enforcement. According the Houston, the use of the current dogs could violate Fourth Amendment rights.
“The question is going to come down to, what is a narcotics dog alerting to marijuana constitute-- probable cause or no probable cause?” he said.
In the past, just the scent of marijuana gave officers probable cause to search a car under the assumption the person was breaking the law. Now with an ounce or less legal for adults 21 and over, police will have to take extra precautions.
“That officer better have more than simply a K9 alerting to the smell of marijuana,” Houston said. “If the officer does not have more than that, then the officer shouldn’t have instituted a search.”
But Houston says a solid argument could be made for continuing to use the current dogs.
“You really do have legitimate arguments on both sides,” he said. “It is a very murky area and it’s going to be litigated. The question’s going to become for a judge whether or not the smell of marijuana and the smell alone should rise to probable cause. I know the officers are going to test it and the defense lawyers are going to complain about it, and we’ll get a ruling at some point. But right now it’s an interesting question.”
Houston, who often deals with drug related cases, says he does see many cases where a person is carrying more than an ounce at a time.
“I would hate to say more often than not, but it’s probably true,” he said. “But now you’re going to have people then who don’t have the need to go out and purchase more so they can stockpile at home.”
Deputy Sheriff Pullen says marijuana is the most common drug Rex and other narcotics dogs find.
“Almost on a daily basis he finds marijuana,” he said. “In almost every car we search he finds marijuana.”
Rex is six years old, and has spent his entire life trained to alert to the scent of marijuana
“It’s going to be difficult,” Pullen said. “It’s going to be a learning curve. You know because marijuana will be legal, and if they tell us they have marijuana, it's going to be a little difficult to run a dog.”
Right now, there’s no precedent in Nevada for the use of dogs trained to detect pot. But local law enforcement agencies are working with other states like Colorado and Washington, where recreational marijuana has been legal for several years, to see how they have navigated this issue.
“This is something new for us,” Pullen said. “Hopefully with more information we get from Colorado and Washington, we’ll make it work for our K9 unit and we’ll go out and still serve the community.”
One option for law enforcement would be to retrain the current dogs, but that’s an expensive option and hard for dogs like Rex who have spent their whole lives alerting to the scent.
Another option, and most likely option, is to start moving to three of four scent dogs, meaning those that are not trained to alert to marijuana, when the current drug dogs retire. Though Pullen says he believes most police agencies will always have dogs that can detect marijuana on staff.
A third option would be to retire the current dogs. It’s another expensive option since it’s a minimum $15,000 to replace a single dog. All the dogs working for the Carson City Sheriff’s office still have at least four years until they would have to stop working. This option would force them into early retirement, though even if that happens, the dogs could still be put to use.
“They can still do a very good job policing what is necessarily a crime, so in other words a prison setting where you have your four scent dogs determine if contraband is in the prison.”
These dogs could also work in schools or courthouses- places where marijuana is still illegal. Right now, though, Pullen says the Carson City Sheriff’s Office will adjust, but doesn’t plan to stop using the current dogs.
“We’ll work around that. And right now we’ve got the backing of the sheriff and the DA’s office to conduct business as normal, but also go a little further in the stop before we run the dog. Not much is going to change in how we do our job, just different questions we’re going to ask. Marijuana is still illegal for children or adults under 21.”
Houston says he’s not surprised by this decision.
“Law enforcement has not changed their policy, and in my opinion, probably will not change their policy until they are required to do so.”
And that, he says, is going to take a legal decision.
“At some point, someone will be arrested, the probable cause will be based on a K9 alert referencing marijuana, and that case will wind its way through the system and wind up at the [Nevada] Supreme Court,” Houston said. “It’s really going to be interesting to see how this is finally going to be ruled on. Obviously being a defense attorney, I would lean towards the notion that if it’s a legal substance, the simple alert of a K9 does not sponsor sufficient probable cause to justify a search. Business as usual, in my opinion will be violating a citizen’s right to be free from unreasonable searches and seizures.”
We reached out to both the Washoe County Sheriff’s Office and the Reno Police Department. Both agencies say they are looking into the issue, but plan to use their current dogs while looking at best practices and case law in other states to help them determine the best course of action moving forward