Chautauqua County Sheriff's Office

While drug-sniffing police dogs are reportedly being forced into early retirement in states where adult-use marijuana has been legalized, Chautauqua County Sheriff James Quattrone doesn’t believe any of the department’s K-9s will be impacted quite as dramatically.

At issue is that dogs trained on detecting multiple drugs — including marijuana, heroin, methamphetamine and cocaine — alert in the same way for all of them, so it’s impossible to tell whether the K-9s are indicating the presence of pot or an illicit drug. The dogs also cannot distinguish between a small, legal amount of marijuana or a larger, still-illegal amount of the drug.

A story published in late May by the Associated Press noted that for police, the new laws regarding marijuana possession mean they can no longer be used to establish probable cause for a search.

Quattrone confirmed the new law, which allows adults in New York state to legally possess and use up to 3 ounces of marijuana for recreational use, will impact the department in regards to utilizing the drug-detecting K-9s from building probable cause in cases.

“These dogs are trained to provide the same indication upon locating any of their trained odor,” the sheriff said, “and, to my knowledge, there does not exist any legally substantiated examples of a canine being retrained or ‘cleaned’ off a previously imprinted odor.”

He added: “So the obvious legal argument brought by any defense is that, even if a dog indicates and another drug is located, they will claim their client is a regular marijuana smoker and the canine was indicating on the residual marijuana odor. This will most certainly hold up in most circumstances.”

However, Quattrone said for the “vast majority” of the time, the K-9s are used as a location tool. “It has been fairly rare that we utilize the dog’s indication to build probable cause, without given consent, for a warrantless search or as cause for a search warrant application,” he said. “There were only very limited circumstances where we could use them in this way.

“Most of the time the situation was that probable cause for search already existed, completely irrespective of the canine use, and the dog was used for a tool in locating contraband that could not be found through manual search. This utility is still absolutely just as viable as it was before the new marijuana laws. For example, if we have a search warrant to search for narcotics in a residential space, I am not aware of any legal ruling that restricts or defines what tools we may use in that search. (It’s) no different than someone using a mirror or periscope to search a drop ceiling, no different (than) a portable X-ray. These dogs are location tools that ‘see’ what nothing else can.”

In Virginia, the rush to take marijuana-detecting dogs out of service began even before lawmakers voted last month to accelerate the timetable for legalization. A separate law that went into effect in March prohibits police from stopping or searching anyone based solely on the odor of marijuana.

Virginia state police are retiring 13 K-9s, while many smaller police departments and sheriff’s offices are retiring one or two dogs. Most are in the process of purchasing and training new dogs to detect only illicit drugs, including cocaine, heroin and methamphetamines. Some departments are unable to afford up to $15,000 to buy and train a new dog, so they are disbanding their K-9 units.

According to the AP, other states that legalized marijuana earlier have had to make similar adjustments. “The trend is everywhere,” said Don Slavik, executive director of the United States Police Canine Association. “Once you train a behavior in a dog, that never goes away. They don’t want any mistakes, so that is why they want to bring in new dogs,” he said.

In Massachusetts, where recreational marijuana became legal in 2016, the Quincy Police Department shifted two dogs from drug detection to patrol work, then retired them about 18 months later.

Two of the four K-9s with the Chautauqua County Sheriff’s Office (K-9 Drake and K-9 Link) are used for narcotics detection; the other two dogs (K-9 Jax and K-9 Bentley) handle explosives detection, and small article and explosives detection, respectively. Drake, Link and Bentley are also utilized on patrols and for human tracking, further making them an important tool for the department.

“Obviously, I believe that our current narcotics dogs are valuable tools that should continue to work, in their specific legal capacity, for as long as they are healthy,” Quattrone said. “Going forward, it is pretty clear that we should not be certifying in marijuana detection.”