The Effect of Legal Hemp on Drug Dog Sniffs (Part II)

Last week, in Part I of this series, I discussed whether having a drug dog sniff a vehicle is a search if the drug dog might alert upon smelling hemp, a substance that is legal to possess. Today’s post focuses on what may be an even more significant question: if a dog alerts, does the alert provide probable cause to search? The accuracy of drug dogs, and so the significance of a dog’s alert, has long been a subject of dispute in our criminal courts. The Supreme Court mostly put that debate to bed in Florida v. Harris, 568 U.S. 237 (2013), where it held that “[i]f a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search.” Of course, the caveat about “conflicting evidence” is an important one for defenders, who may want to dig into a dog’s training and field performance records. But for present purposes, the more material point is that Harris didn’t address the impact of legal hemp. Does its holding still apply to dogs trained to alert to marijuana, and who may now wrongly alert upon smelling legal hemp? “Sniff plus” is definitely sufficient. In some cases, it isn’t necessary to answer this question head on. For example, when there are other incriminating circumstances beyond the dog’s alert, the court may find that the “sniff plus” provides probable cause. Consider the recent [...]