The recent changes to Ohio law enacted by Senate Bill 57 now call into question whether a drug dog’s “positive alert” can still provide “probable cause” to conduct a warrantless search of a person, personal items, or a vehicle for drugs–specifically, marijuana.
On July 30, 2019, Ohio Governor Mike DeWine signed Senate Bill 57 into law, which legalizes hemp in Ohio. Hemp is a cannabis plant that is harvested commercially for its seeds and stalks. For cannabis to be legally considered hemp, it must contain no more than 0.3% tetrahydrocannabinol (THC) per dry weight. Simply put, a THC level of 0.3% or less is hemp and legal in Ohio. However, a THC level of over 0.3% is marijuana, which is generally illegal in Ohio.
Hemp vs. Marijuana
Significantly, because marijuana and hemp are derived from the same cannabis plant, both the illegal substance (marijuana) and the legal substance (hemp) smell identical. Courts have generally held that a drug dog’s positive alert provides a law enforcement officer with probable cause to conduct a warrantless search in some circumstances (for example, in traffic stops). However, there now exists the very real possibility that a positive alert by a drug dog could be based on the dog’s detection of the odor of hemp—not marijuana.
The Ohio Highway Patrol have recognized that currently trained drug dogs cannot be taught to distinguish the odor of hemp from the odor of marijuana. See Bill Bush, Police Dogs Can’t Tell the Difference Between Hemp and Marijuana, Columbus Dispatch, https://www.dispatch.com/news/20190812/police-dogs-cant-tell-difference-between-hemp-and-marijuana (Aug. 12, 2019). Moreover, while drug dogs are often times trained to alert when they detect more than one smell—for example, the odor of cocaine or heroin—they react the same way to any smell for which they have been taught to alert. See id. According to the interim Columbus Police Chief, “K-9 units will be releasing new policies and procedures so we limit hits on cars that might be THC based. I had already directed the next 2 K-9s we train will not be certified to alert on THC.” Id.
Columbus City Attorney Zach Klein has taken the stance—for the time being—that “a vehicle may not be searched solely because a K-9 trained to alert to marijuana, alerted to the vehicle.” Id. Klein directed officers that the odor of burning marijuana would likely provide probable cause for a search, as it is unlikely an individual will be smoking hemp. Id. However, if a person claims he or she is smoking hemp, Klein directed officers in a memo sent to police to evaluate the totality of the circumstances. Id.
The alleged detection of the odor of raw marijuana by law enforcement officers provides a pricklier legal landscape, as there is no way for a human to distinguish between the odor of raw marijuana and the odor of raw hemp. Id. Therefore, Klein has taken the position that the odor of raw cannabis alone no longer—at least until evaluated by a court—provides probable cause for a warrantless search. Id.
Additionally, because medical marijuana is now legal in Ohio, drug-sniffing dogs trained to alert for the odor of marijuana cannot be retrained to stop reacting to marijuana. Prior to the recent changes in Ohio law, Ohio courts have held that a drug-sniffing dog’s positive alert gives a law enforcement officer probable cause to conduct a warrantless search of a vehicle, person, and/or personal items. Thus, there is the real possibility that a drug dog will detect the odor of marijuana on a person or in a person’s vehicle who has received a recommendation from a doctor to use medical marijuana. Drug-sniffing dogs cannot be trained to distinguish between the odor of lawful marijuana and the odor of unlawful marijuana.
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