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Video Transcribed: Are drug dogs even relevant in the age of medical marijuana in Oklahoma? I’m Tulsa Criminal Defense Attorney, James Wirth and that is the topic. I was reading an article from the Associated Press, and it’s talking about Virginia and them legalizing, or getting ready to legalize, marijuana or medical marijuana. And in response to that, many of the police agencies in the state are sending their canine dogs that are trained for drug detection to early retirement.
Essentially, the argument being, when these dogs are trained, they’re trained for specific substances, various narcotics, including marijuana. They are not trained to alert differently based on the type of substance that they are detecting.
So from the point of view of the officer, when you get a drug dog alert, you don’t know if the dog’s saying I smell cocaine or marijuana. So if marijuana is legal, then does that provide sufficient information for the officer to decide whether he can detain somebody or arrest somebody or search somewhere, search a vehicle under the vehicle exception to the warrant requirement?
So, in order to get around that, they’re saying it’s not worth taking the time of getting new dogs and retraining them. So they’re essentially retiring their dogs and not getting new ones. Well, how does that apply to the State of Oklahoma and what we’re finding here?
Well, unfortunately, that’s not exactly what we’re doing here. There’s certainly an argument, if a drug dog is alerting and it could be marijuana, then that would negate it is probable cause to have a drug dog alert. But we got a decision from the Oklahoma Court of Criminal Appeals that recently came out and they decided to publish this decision.
It’s 2021 OKCR 16, Oklahoma versus Brandon Roberson. And in that case, it has to do with a vehicle that was pulled over and the officer smelled marijuana. And whether that is still probable cause in the state of Oklahoma, where we have medical marijuana that is perfectly legal, whether that’s still probable cause to search the vehicle because there is probable cause that crime is being committed, probable cause also being the same standard to arrest somebody. So that is an important distinction to make.
And there are some who argue that smelling marijuana now cannot establish probable cause because that could be perfectly innocent activity. They could have a card. There are others that say that it needs to be factored into the totality of the circumstances.
That can be the fact that the officer smelled or the dog alerted could be evidence to be taken along with everything else to see if there’s probable cause. But the Oklahoma court of criminal appeals took it one step further. And, let me find that quote on what their standard is, on whether this affects it. And this is Judge Lumpkin’s opinion.
He says the decriminalization of marijuana possession for those holding medical marijuana licenses in no way affects a police officer’s formation of probable cause based on the presence or odor of marijuana. So they said flat out makes zero difference. We don’t care.
This could be a perfectly legal activity for a good percentage of the people, possess marijuana. It’s still the probable cause of a crime. You can still search. And presumably, since the same standard for searching is arresting. You could be arrested for marijuana, even though it’s perfectly legal. So, does that mean the drug dogs are still going to be relevant in the state of Oklahoma?
Based on this opinion, it sounds like that’s the direction that they’re going. So if you’re pulled over, have medical marijuana, dog alerts, even though it may only alert based on your legal marijuana, that could be grounds to have you detained, could be grounds to have your vehicle searched, could be grounds to have you arrested because also another part that’s disturbing in this opinion is Judge Lumpkin goes on to say that while the production of medical marijuana license may constitute an affirmative defense to the crime that goes on from there. But essentially the court is now saying that possession of a license is an affirmative defense.
That means that it’s on the defendant after they’ve been arrested and charged and brought before the court to prove that they’re innocent by presenting a medical marijuana card, they’re calling it an affirmative defense. Instead of saying that it’s an element of the crime that the state has to prove they did not have a card, which is easy enough to do, there are records available through the OMMA.
I’m sure those could be subpoenaed by the state, but that’s the direction that the Oklahoma court of criminal appeals is going. And that can be a little bit scary for people that are using medical marijuana and have a license for that.
So, the question that we’re going back to is are drug dogs relevant in the age of medical marijuana legalization? And the answer is in some states they’re not relevant anymore. They’re retiring, they’re getting rid of them. I’ve heard of at least one city in the state of Oklahoma that is doing something similar, retiring their dogs rather than spend to retrain them or get new dogs.
But based on this indication from the Oklahoma court of criminal appeals that was published on June 17th, 2021, it sounds like Oklahoma is going a different route and finding that drug dogs, even though that they may be detecting a perfectly legal substance are still going to be enough to have you searched, detained, arrested.
If you’ve got questions about that, have a case pending, or you are looking for one of our criminal lawyers tulsa, ok at Wirth Law Office, you’re going to want to go online to makelaweasy.com to get that scheduled.
