Amid the legal haze that's arisen since Michigan voters approved recreational marijuana in November is a plume of doubt surrounding the future roles of police dogs and the admissibility of evidence uncovered by their marijuana-sensitive snouts.
Some communities around the state are watching a case in Colorado to determine whether their dogs can still be used to establish probable cause for a police search or if those canines are destined for an early retirement.
Many police dogs undergo extensive training to detect drugs and signal the presence of drugs to their handlers, who use it in part as a basis to search vehicles during roadside stops.
But most of Michigan's police dogs were not trained to differentiate between a legal recreational substance like marijuana and an illegal substance such as cocaine.
It is not clear whether any Michigan police departments are planning early retirement for their canine partners as of yet, but the legalization likely will change the way new dogs are trained, said Blaine Koops, executive director for the Michigan Sheriffs’ Association.
“We’ll change the methodology behind those drug-sniffing dogs and eliminate the marijuana piece,” Koops said.
Michigan State Police are unlikely to retire their 55 police dogs anytime soon since they can still be used to assist federal authorities and to search in areas where marijuana remains illegal, such as school buses, prisons and schools.
In Colorado, departments have started retiring some dogs in favor of ones with training that excludes marijuana because it removes the legal haze around the probable cause question, Vasquez said.
The Colorado Supreme Court heard arguments in December about whether a dog trained to detect drugs that include marijuana could provide reliable probable cause that would allow police to search a vehicle, The Colorado Sun reported.
Parties have argued that the drug-sniffing dogs police rely on to determine probable cause to search a vehicle may be detecting marijuana, now a legal substance, instead of illegal substances. Without a firm basis for probable cause, the cases can be thrown out no matter what’s eventually found in the vehicle.
The Oakland County Sheriff Department has at least one dog that doesn't react to marijuana, said Sheriff Mike Bouchard. The department is working to refine its process to accommodate the new law, Bouchard said.
The East Lansing Police Department, which has two drug-sniffing dogs and one dog trained in explosives, is watching the Colorado case for cues as to the path forward, said Chief Deputy Steve Gonzales.
Michigan prosecutors also are keeping an eye on the Colorado decision, said Eaton County Prosecutor Doug Lloyd, secretary of the Prosecutors Association of Michigan. But he noted a drug dog currently doesn’t establish probable cause on its own; instead, it builds on the reasonable suspicion the officer already has.
“What a drug dog is beneficial for is expediency,” Lloyd said.
Given the legalization of medical marijuana in 2008, the issue of police dogs trained to detect a legal substance shouldn’t be anything new, said Denise Pollicella, managing partner of Cannabis Attorneys of Michigan.
While police dogs may still be useful to patrol the potential uptick in students bringing marijuana from home to school, the days of using marijuana-sniffing police dogs to establish probable cause should have long since passed, Pollicella said.
“We’ve had a few years now of fairly consistent decisions in Michigan that are refuting the ability to use odor as probable cause,” she said.