In Part 1 (click here), we reviewed cases from other medical and recreational marijuana States that evaluated the impact these statutes have on the 4th Amendment. In Part 2 (click here), we offered practical guidance on how Officers can adjust their investigative and reporting practices to ensure that both are as defensible as possible as we await answers from the Oklahoma Court of Criminal Appeals. In this final Part, we discuss why medical marijuana should have no impact drug detection K9s that are trained to alert to marijuana.
On May 20, 2019, the Colorado Supreme Court became the first Court in the Country to invalidate a search based on an alert from a K9 that was trained to alert to marijuana when it issued its opinion in People v. McKnight[i]. That case illustrates why Oklahoma’s medical marijuana statutes should have no impact on the viability of drug detection K9s that are trained to alert to marijuana.
Understanding K9 Perimeter Sniffs Under the 4th Amendment
The reason why a K9 may be utilized for a perimeter sniff of a vehicle without a warrant is because the United States Supreme Court has held that this is not a “search” for 4th Amendment purposes. For 4th Amendment purposes, a search occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.”[ii]
In Illinois v. Caballes[iii], the United States Supreme Court held that a perimeter sniff by a drug detection K9 was not a search because “the use of a well-trained narcotics-detection dog - one that ‘does not expose noncontraband items that otherwise would remain hidden from public view’ - during a lawful traffic stop, generally does not implicate legitimate privacy interests.” The reason was simple: the K9 could only detect drugs (contraband), and “any interest in possessing contraband cannot be deemed ‘legitimate,’ ... thus, governmental conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest.”
Understanding McKnight
When Colorado adopted medical marijuana, the Colorado Courts held that those statutes did not alter the probable cause analysis when marijuana was involved. This was also true as it related to the use of drug detection K9s trained to alert to marijuana. In People v. Esparza[iv], the Colorado Supreme Court held that Caballes still applied to perimeter sniffs by a K9 in Colorado.
The expansion to legalized recreational marijuana changed this analysis. In McKnight, the Court held that the recreational marijuana statutes, unlike the medical marijuana statutes, changed marijuana’s legal status in Colorado from being contraband to being noncontraband. Since marijuana is no longer contraband in Colorado, the Court held that a drug detection K9, if trained to alert to marijuana, would be able to detect something that was in a vehicle that a person in Colorado would have a legitimate expectation of privacy in possessing.
The holding in Caballes was based on the fact that a K9 could not detect the presence of “noncontraband items that otherwise would remain hidden from public view”. For that reason, a K9 perimeter sniff was not deemed to be a search. Since marijuana is now a “noncontraband item” in a recreational Colorado, the McKnight Court concluded that the use of a K9 trained to alert to marijuana would constitute a search.
The default rule is that an officer may not conduct a search without a warrant. There are numerous exceptions to the warrant requirement, including the automobile exception established by the United States Supreme Court in Carroll[v]. Under the automobile exception, officers may conduct a warrantless search of a vehicle if they have probable cause to believe that the vehicle contains contraband or evidence of a crime.
Since the Court concluded in McKnight that that a perimeter sniff by a drug detection K9 was a search if the K9 was trained to alert to marijuana, that perimeter sniff (search) could not be performed under Carroll unless, prior to the perimeter sniff, the officer had probable cause. The result essentially negates the usefulness of K9s in Colorado that are trained to alert to marijuana (at least for drug detection purposes). The whole point of utilizing a drug detection K9 is to establish probable cause for a vehicle search[vi]. If an Officer must have probable cause before utilizing the K9, then the Officer does not need to use the K9 since, per Carroll, they can physically search the vehicle based on the probable cause.
Impact of McKnight on Oklahoma
McKnight makes painfully clear that it reached this result only because Colorado legalized marijuana possession for every adult. The Court made clear that, prior to the expansion from medical to recreational marijuana, probable cause was not required in Colorado as a condition on utilizing a drug detection K9 for a perimeter sniff.
Should Oklahoma expand at some point in the future to legalized recreational marijuana, then McKnight could potentially become relevant to us. As of today, that has not occurred. The new medical marijuana statutes should not be a reason for Oklahoma Police Departments to consider disbanding their K9 programs or retiring K9s trained to alert to marijuana.
Return to OMAG's Medical Marijuana page
Footnotes:
[i] 446 P.3d 397 (Co. 2019)
[ii] Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz v. United States, 389 U.S. 347, 351 (1967) (Harlan, J., concurring)). A search can also occur if the government physically trespasses or intrudes into a constitutionally enumerated areas (“persons, houses, papers or effects”) in order to obtain information. Kyllo citing U.S. v. Jones, 565 U.S. 400 (2012). This so-called Jones trespass analysis is not relevant in the context of a K9 perimeter sniff.
[iii] 543 U.S. 405 (2005)
[iv] 272 P.3d 367 (Co. 2012)
[v] Carroll v. United States, 267 U.S. 132 (1925)
[vi] Florida v. Harris, 568 U.S. 237 (2013) (confirming that an alert from a drug detection K9 establishes probable cause to search a vehicle).
DISCLAIMER: The process leading up to the implementation of medical marijuana in Oklahoma has been a long one and is still on-going. OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG members seeking advice on the medical marijuana statutes should be aware that there may not be clear-cut answers on some of the issues. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures, directly or indirectly related to medical marijuana, until some of the issues can be decided by the Legislature or the Courts. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department at omaglegal@omag.org.
