SEATTLE -- The passage of I-502 made things difficult enough for the humans tasked with creating and enforcing the laws for legal marijuana. Now, try explaining the difference between "personal use" and "intent to sell" or the gray area between state and federal law to a dog.
That's why many law-enforcement agencies around the state, including the Seattle Police Department and Washington State Patrol, will no longer be training their drug-sniffing dogs to alert for marijuana.
“Moving forward, it makes most sense not to train dogs to alert to marijuana as that would likely lead to unwarranted investigatory detentions of people who are not breaking any law," said Alison Holcomb, author of I-502 and drug policy director for the American Civil Liberties Union.
The Washington Association of Prosecuting Attorneys sent out a memo advising the state's law-enforcement agencies that narcotics dogs are no longer required to be trained to alert for marijuana in December. And, marijuana was removed from the Washington State Criminal Justice Training Commission's Canine Performance Standards test in January.
Teaching old drug dogs new tricks
Sgt. Sean Whitcomb said the Seattle Police Department is already taking steps to desensitize its dogs to marijuana through rewards and constant training.
"Got to keep those sniffers in shape," Whitcomb said.
Thanks to some fortuitous timing, the Bellevue Police Department is on the leading edge of removing marijuana from narcotics dogs' vocabularies.
In January, the department decided to train its general tracking dog to also detect drugs. During the dog's two months of training, the department specifically taught it not to alert for marijuana, Bellevue Police Lt. Dan Mathieu said.
"The ideal is the situation we're in right now," he said.
Drug-sniffing dogs no longer enough
However, while agencies still have dogs trained to alert for marijuana on patrol, officers will no longer be able to rely solely on dog's alert when determining probable cause for a search warrant, according to the Washington Association of Prosecuting Attorneys memo.
The memo states officers hoping for a search warrant based even in part on a dog's alert will have to inform the judge the dog was trained prior to the legalization of marijuana and present additional evidence, such as a suspect's history of convictions or information from a witness.
Washington State Patrol spokesperson Bob Caulkins said his department will be more specific in its search-warrant affidavits in the future.
In the past, a narcotics dog's alert was pretty much all that was needed to get a search warrant, Caulkins said. He said a dog often wasn't even necessary to arrest for investigation of a DUI as long as an officer smelled marijuana in the car.
Now, Caulkins said officers will have to inform the judge a narcotics dog might be alerting for a legal amount of marijuana, but there are other causes for suspicion, such as the car leaving a known drug house or white powder on the driver's mustache.
Whitcomb said that jibes with standard procedure for the Seattle Police Department's narcotics dogs.
“A dog sniff on a car for us has never been a sole reason for getting a search warrant," Whitcomb said. "We’ve always used other factors.”
He said the department's process of desensitizing its dogs to marijuana should give anyone transporting the legal amount of marijuana some additional comfort, and they shouldn't fear a search and seizure.
However, there are still situations where an alert from a narcotics dog would be enough to perform additional searches, for example if the suspect is under 21, according to the Washington Association of Prosecuting Attorneys memo.
And, the requirement of additional evidence shouldn't be seen as too much of burden for officers. According to the memo, probable cause only requires fair probability that evidence of a crime will be found, not certainty. And, search warrants have been upheld in the past even with significant errors from drug-sniffing dogs.
These new requirements also aren't necessarily long-term changes.
Caulkins said the Washington State Patrol will be going back to the status quo for search warrants as soon as its current dogs retire and are completely replaced with dogs not trained to alert for marijuana.
The future of pot-sniffing dogs
But, not all law-enforcement agencies are on board with the changes.
Tacoma Police Department spokesperson Loretta Cool said the department will not be changing any of its procedures for training or using narcotics dogs as the possession of marijuana is still illegal under federal law.
That attitude is concerning to the ACLU.
Holcomb said narcotics dogs trained to alert for legal marijuana could extend detention and questioning beyond the scope of reasonable suspicion of a crime. This is especially worrisome because marijuana residue and odor are much more likely to be present on the state's residents than any of the other substances dogs are trained to detect, she said.
Pam Loginsky, who wrote the Washington Association of Prosecuting Attorneys memo, said law-enforcement agencies are still free under state law to train their narcotics dogs to alert for whatever substances they desire.
“Canines that are trained to alert to marijuana provide valuable information in support of probable cause for a search warrant," Loginsky said.