By RUSSELL JONES
Cole, a drug-sniffing dog that is a member of the K-9 unit with the Vermont State Police, could one day be out of a job due to the recent legalization in Vermont to possess small amounts of marijuana.
While Cole’s talents have been essential in the drug interdiction work done by the police in years past, his highly developed sniffer could present more of a legal problem than an asset. That’s because police are only allowed to search a car or person if there is probable cause during routine stops, but it has to be probable cause for drugs other than pot or else the case could be tossed out.
Whether dogs trained to detect marijuana are used in traffic stops is up to the state’s attorneys and judges.
“It’s different in each county,” Robert Ryan, training coordinator for the Vermont Police Academy’s Canine Program, said in an interview last week. “The handlers need to know what those people in their county want.”
Rose Kennedy, state’s attorney for Rutland County, said one of county’s K-9 units may be used to search for marijuana and other drugs, but that the dog would no longer be used for routine traffic stops.
The issue has been prompted by the Legislature’s passage of Act 68 last year and Gov. Phil Scott’s signing of the legislation in June 2018. The law became effective July 1 that year. The law legalized marijuana possession, under an ounce, by adults 21 and over throughout the state.
This concern, as well as the cost of training to Vermont’s K-9’s, had less impact than the public’s desire for marijuana legalization.
Brandon police chief Christopher Brickell
But here’s where it gets tricky. Because possession over an ounce is still illegal, officers may want to use a canine that can detect marijuana, but if the dog alerts and officers find drugs other than marijuana the case in court may be in jeopardy.
“A few years ago when law enforcement saw the issue of marijuana moving towards decriminalization, then to legalization,” Brandon Police Chief Christopher Brickell explained, “we knew there would be issues with Vermont K-9’s who have been drug certified.”
Whether a K-9 sniff is sufficient to give officers probable cause has long been an issue of contention between state’s attorneys and defense attorneys. Going back to 1983, the U.S. Supreme Court ruled that a sniff in a public area did not constitute a search and, therefore, did not violate the Fourth Amendment.
Over the years, it’s been a tightrope walk of legal opinions, but, put simply, a dog trained to detect marijuana and other drugs that alerts to a car packed with several kilos of cocaine may have alerted to the scent of now-legal weed and render the search illegal.
In Colorado, where marijuana has been legal since 2014, the Court of Appeals recently ruled that if a drug-sniffing dog is trained to alert officers to marijuana and other drugs, cops need more cause to search a vehicle without specific consent to do so.
The ruling did not come as a surprise to Vermont law enforcement.
“These concerns were brought up to the Legislature warning them that they would now defeat any drug interdiction work law enforcement was currently doing,” Brickell said. “This concern, as well as the cost of training to Vermont’s K-9’s, had less impact than the public’s desire for marijuana legalization.”
ACADEMY SHIFTS APPROACH
As a result, the academy began a different training program that would certify K-9’s on drugs other than marijuana if an agency so chose.
There are currently a total of 46 canine teams in the Vermont Police Academy Canine Program, which includes the State Police, municipal police departments, sheriff departments, and the fish and game department.
Ryan has run the canine program at the Pittsford State Police Academy for several years, and currently said he “will have trained 10 new teams this year.”
The State Police have four teams that still find marijuana and 10 teams that do not. The municipal and sheriffs departments combined have 11 teams that find marijuana and 14 teams that do not. The other seven teams are not drug detection canines.
“Some of the new K-9 teams have not been trained on marijuana odor,” Ryan said. “There are still several teams trained for marijuana. They are used in schools and on search warrants.”
While there have been no discussions of retiring the program’s pot-sniffing canines early, and they will still be used in schools and for search warrants in the future, it’s a sign of the times to note that drug-sniffing dogs like Cole will in the future be trained to alert for cocaine, heroine and other illicit drugs, but not so much for the drug that early-on launched the use of the K-9 program.
