Weed, Dogs & Traffic Stops

Abstract

The Supreme Court has long characterized a dog sniff as a binary investigative technique. For nearly four decades, the Court has held that a dog sniff conducted during a routine traffic stop is not a Fourth Amendment “search” because it reveals only the location of an illegal substance. Marijuana, however, is now legal in thirty-four states. Accordingly, this Article closely reexamines the Fourth Amendment’s treatment of dog sniffs.

In doing so, it makes three overarching arguments. First, a dog sniff conducted during a routine traffic stop is a nonbinary type of investigative technique in states that have legalized recreational or medicinal marijuana. Second, a dog sniff conducted during a routine traffic stop is a Fourth Amendment “search” in those same states. Third, law enforcement agencies operating in those states must retrain or replace their drug-detection dogs.

Moving forward, the Article further demonstrates, law enforcement agencies will encounter significant challenges associated with retraining or replacing their drug-detection dogs. It therefore concludes by providing law enforcement agencies with ways to mitigate those challenges. At its core, this Article offers the judiciary and law enforcement profession with a constitutional path forward.

Keywords: search & seizure, legal marijuana, routine traffic stops, drug dogs, dog sniffs, binary investigative techniques