Sniffing Out the Truth
Video Transcribed: Drug Dog Myth number six, the legalization of medical marijuana in Oklahoma doesn’t change anything. I’m Tulsa attorney James Wirth doing a series of videos related to drug dogs in Oklahoma, and specifically the myths associated with them.
This myth is that the fact that medical marijuana is now legal in Oklahoma doesn’t change anything as far as a drug dog being used to establish probable cause. That’s a myth, it should definitely change things. But that myth comes from high authority, so you want to be aware of that. It comes from the Oklahoma Court of Criminal Appeals which is the highest court for criminal cases in the state of Oklahoma. And it’s from a case that was decided back on June 17th, 2021. It’s State v. Roberson 2021 OK CR 16. And in that case, it deals with an officer knowing that there is marijuana in a vehicle and whether that establishes probable cause to search that vehicle, it was Tulsa County Judge Clifford Smith said, “That’s not probable cause now that we have legal marijuana,” and kicked the case.
It was appealed by the state of Oklahoma Court of Criminal Appeals and they reversed it. And they said that decriminalization of marijuana 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, now this specifically deals with an officer smelling or being aware of marijuana, but then we definitely want to look at how that affects a canine, a drug dog alerting to marijuana. So, first, let’s get a little bit of background on how canines are used. So, under the Fourth Amendment, you cannot do a search without a warrant that is unconstitutional, it is per se unreasonable, you’ve got to have a warrant. But there are certain exceptions. So, exceptions to the warrant requirement, there’s one called the automobile exception. And that’s because the vehicle is mobile, therefore, we don’t have time to go get a warrant.
The car will be gone by there, so we have to have an exception. But the exception requires probable cause that a crime is being committed. So, if you have an automobile and probable cause that a crime is being committed, then you can search that vehicle without consent, without violating the Fourth Amendment pursuant to the United States Supreme Court precedent. So, how do you get probable cause to search? That’s where the drug dog comes in. They run the drug dog around the drug dog alerts, and that is supposed to be probable cause that a crime is I.e. the possession of narcotics is being committed. But these drug dogs don’t know how to alert to a particular narcotic. They’re trained to alert pretty much four different ones, and the alerts are the same. So, they tell the handler supposedly that they’re alerting to one of those four smells. The handler does not know which one. So, the fact that marijuana, one of those four things it’s trained on is now legal in Oklahoma for people that have a card, then that undermines it being probable cause.
And it’s more than that because we know of the magnificent acuity of the sense and smell of canines. They are picked specifically because they can smell so well. Some scientific reports say they can smell 40 times better or better at smelling than humans. I’ve had canine handlers testify that it’s a thousand times better, a hundred thousand times, a million times better. Sometimes we use different analogies that we may smell chili, but the dog smells each one of those individual ingredients in there. Okay. So, they can definitely smell well, but that doesn’t help them be reliable, particularly when we’re talking about a legal industry in the state of Oklahoma because of transference and because of trace amounts. So, transference can then trace amounts. So, we had an officer, canine officer testify in a preliminary hearing that if a crackhead was going around Walmart trying to open up every car, his dog would potentially alert to each one of those vehicles’ handles because of the trace amount of crack cocaine that was on that person’s hand that then transferred to the vehicle when they touched it.
So, that’s talking about crack cocaine, which you’re not going to see everywhere. But what about when we have this booming legal medical cannabis industry in the state of Oklahoma, where we have over 10,000 legal cannabis businesses each with employees working there, that not only then we have over 300,000 people in Oklahoma that are licensed to use marijuana. And it’s not just them that’s going to alert if you’re around somebody who’s smoking it, if you go into a cannabis shop but don’t even participate, all those scents are going to be on you. If you can smell it, a dog’s going to be able to smell it way better. So, if you can smell it one out of a hundred times, a dog may be able to smell it 99 out of a hundred times.
And that means that this smell of marijuana is going to be all over all these different areas where it wasn’t before and it’s going to be perfectly legal. So, the fact that an alert by a dog now has a much less chance that it’s going to be alerting to something that’s illegal and a much larger chance that it’s going to be alerting to legal cannabis smell, does that affect canine units being a probable cause that a crime is being committed? And the myth is that it doesn’t have any effect at all because that’s what the Oklahoma Court of Criminal Appeals wants us to believe based on their ruling in that other case. But that is a myth and it should be challenged. If you’ve got a case that is dealing with that, it is not enough to go along. You want to, differentiate between a human smelling it and a canine smelling it because a human smelling it, that’s going to mean that there’s a much larger concentration of marijuana if a human’s going to smell it too.
Humans smelling marijuana can then say, “Oh, I smelled marijuana,” not “I smelled marijuana. Or maybe it was cocaine, or maybe it was heroin or meth, it was methamphetamine. I don’t know which, but I smelled something.” That’s what it is from a dog. And then due to the acuity, it’s a much potentially much smaller amount. It could be a trace amount, or it could be transference based on, you get into an Uber car with somebody who smokes marijuana. You may not smell it at all, but it may be trace amounts in there that get on your person, and then it gets in your vehicle is alerted by a dog. So the fact is, with legal cannabis in Oklahoma and it being such a booming business with so many users, so many dispensaries grow operations employees around it all the time, the likelihood that this is a legal activity that the dog is alerting to has gone up a lot.
So, it should definitely factor in determining whether there is probable cause or not, and it should require much more than the alert of a canine to a potential smell of narcotics. The state should probably look at retraining those dogs to get them away from smelling marijuana, but at this point, they’re not incentivized to do that because the Oklahoma Court of Criminal Appeals so far is saying it doesn’t make any difference. But if we go up to a higher court or we look at a more constitutional standard, I think you’re going to find and agree with me that that’s a myth, that it does factor in and it does make a difference in whether probable cause is established or not. If you’re dealing with a case like this, you’re probably going to want to talk to an attorney about your specific circumstances and do so confidentially to get legal advice specific to you. To get that scheduled with an Oklahoma criminal defense lawyer at my office, you online to makelaweasy.com.