Marijuana Legalization Is Retiring Police Dogs. Why That’s Good—And Why All Drug K9 Units Should Go.
Won’t somebody please think of the police dogs? On Saturday, the Associated Press ran the latest example of a genre of news story that’s become a regular accompaniment to marijuana legalization: the fate of now-superfluous drug-sniffing dogs.
Virginia is set to legalize the possession of up to an ounce of cannabis beginning in July. That means the “early retirement” of at least 15 drug-sniffing dogs throughout the state, as the AP item—picked up by outlets across the country—reported, because these dogs are trained to alert to the scent of cannabis.
Any alert is interpreted by police (and prosecutors, as well as most courts) as probable cause to effect a search under the Fourth Amendment. Since the dog can’t discern between a large amount of cannabis and a single joint, and because a dog trained to detect both cocaine and marijuana can’t inform its handler what was detected, the only path forward for police narcotics units is to retire their drug-sniffing dogs and acquire new hounds trained only to suss out cocaine, heroin, MDMA, or other substances still part of America’s war on drugs.
For civil liberties advocates as well as anyone concerned with criminal justice, this is a good development. Drug dogs should retire, because drug dogs are extremely bad at detecting drugs.
As Reason reported last month, drug dogs are often about as useful as a coin toss to determine whether a school locker, vehicle, or individual has drugs. In other cases, drug dogs simply respond to commands from its handler and ignores whatever scents are actually out there.
That is, the drug-sniffing dog isn’t there to sniff out drugs at all. The drug-sniffing dog is just there to give the police probable cause to search—and to impound vehicles and detain people who later turn out to be innocent—on demand.
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Reason offered the story of “Karma,” a drug dog in Republic, Washington, as a parable. A K-9 unit handled by former Republic police Chief Loren Culp, Karma had a perfect record: he detected drugs every time he did a search. The problem was that Karma “detected drugs” when there were no drugs present.
“When he had the chance to stop the impound of an innocent owner’s vehicle, his success rate was zero percent,” Reason reported. That didn’t stop Culp from employing Karma in searches—and that also didn’t stop Culp from boasting on Facebook about Karma’s perfect record.
Criminal-justice scholars and observers have known for years that the problems with Karma are found throughout the United States wherever drug dogs are employed.
As Jane Bambauer, a law professor at the University of Arizona, wrote in an article published in 2013, “dogs are often wrong, alerting where no drugs can be found.” Worse, “dogs can be biased,” she added, “picking up on subtle cues from their handlers.”
Bambauer’s analysis followed a 2011 study from the University of California, Davis, which found that police dogs—trained to detect explosives as well as drugs—are “affected by human handlers’ beliefs, possibly in response to subtle, unintentional handler cues.”
If the police dog’s handler wants the dog to alert—consciously or otherwise—there’s a good chance the dog will alert.
Marijuana legalization isn’t the only reason why drug dogs’ value and purpose are being re-evaluated. Courts are becoming increasingly aware that drug dogs just aren’t good at finding drugs. In a reversal from the position of the Supreme Court 30 years ago, when drugs were considered such a scourge that drug dogs’ unreliability wasn’t a concern, courts are now openly questioning police dogs’ merit.
As TechDirt.com noted, in a decision published last year, a federal court in Utah granted a defendant’s motion to suppress a drug dog search and dismissed his indictment, after noting “serious concerns” about the dog’s “training and reliability.”
The court questioned the reliability of every drug dog in the state—where cannabis is not legal beyond medical applications. This is an enormous boon to defense attorneys handling cases where a dog alert was the probable cause. If Utah thinks that drug dogs aren’t reliable indicators of the presence of drugs, what about other jurisdictions?
So far the nation’s highest court has affirmed law enforcement’s use. In FloridavsHarris, a decision issued in 2012, the Supreme Court ruled that if a drug dog has recently passed a training program, an alert from that dog is sufficient probable cause.
But as the record of Karma and other drug dogs with “perfect” training scores demonstrates, probable cause is a fait accompli. If the handler wants it, the handler can get it. Drugs need not be present.
So if drug dogs can’t be relied upon to detect drugs, if drug dogs are often wrong, and if the courts think drug dogs are unreliable, what’s the point? Why have them at all?
The real application of police dogs is psychological. The presence of a dog grants its police handler a sense of power and authority. If a search is desired, a search is granted. With a record like that, the sight of a dog—or the chance that a dog will be encountered, at an airport, at a border crossing, or at a school, whatever—will deter and discourage the public from flouting the law. The approach of a drug dog might even compel a wavering lawbreaker to give himself up.
That’s not very fair or just, but in an era where all drugs were illegal, you could argue that this was at least legally defensible. Today, when cannabis is legal in some form for more than 200 million Americans, drug dogs snare innocent people in the criminal justice system.
Drug dogs are a vestige of the drug war. If a vast majority of Americans think cannabis should be legal—and they do—and if legal scholars and the courts think drug dogs are bad at their jobs—and they do, and they are—then police departments probably should have been prepared for this moment, rather than providing grist for gauzy news items. But people love dogs—even dogs that are civil-rights violation machines—and so here we are.
So what about the dogs? The “retired” drug dogs in Virginia are all being adopted going home with their police handlers—where, if so desired, they will alert to the presence of drugs every day, for the rest of their days.
The rest of us should wish them a happy and healthy retirement—and encourage every other “drug-sniffing” dog currently in police employ to join them as soon as possible.