It is Time for the Minnesota Courts to Ensure Drug Dogs Trained to Detect Marijuana are off the Streets:

Isabella Spence *

This past summer, the Minnesota legislature legalized adult recreational use of marijuana.¹ Effective as of August 1, 2023, Minnesotans twenty-one years of age and older are allowed to possess or transport a maximum of two ounces of marijuana in a public place and possess a maximum of two pounds of marijuana in a private residency.² This decriminalization of marijuana, though a win for Minnesotans, necessitates a reevaluation of how marijuana is treated under the Minnesota search and seizure law. One such issue that requires attention for Minnesota Courts is the impact that legalized marijuana has on a police drug detection dog that has been trained to detect and alert to the odor of marijuana. Specifically, the Minnesota Courts need to follow the example of the Colorado courts in People v. McKnight in holding that a canine sniff search from a drug detection dog trained to detect marijuana is a search requiring probable cause, because now such canine sniffs may reveal a legal activity.³

 This uncertainty around how drug detection dogs that alert to marijuana will be treated under Minnesota law has already had an impact on the way Minnesota’s law enforcement agencies approach the use of drug dogs in their investigations.⁴ Some of Minnesota’s law enforcement agencies have taken precautions to avoid a marijuana detecting drug dog from jeopardizing drug investigations.⁵ For example, since 2019 the Olmsted County Sheriff’s Office has not trained its drug detection dogs to alert based on the odor of marijuana.⁶ With adult recreational use of marijuana now being legal in Minnesota, the same agency has been retiring those dogs that have been trained to alert to marijuana, as the agency is unwilling to take risks with its drug investigations.⁷ Though Olmsted County has chosen to play it safe given the uncertainty around the validity of a marijuana trained drug detection dog’s alert, currently there is no statute or caselaw in Minnesota that dictates that an alert by such a drug detecting dog no longer gives law enforcement probable cause to search a vehicle. With no guidance for law enforcement, it is important to note that under certain circumstances the use of marijuana is still prohibited,⁸ and as such it is not a clear issue of whether marijuana could never be considered contraband or evidence of a crime. Thus, a drug dog who alerts to marijuana, could in theory be alerting to illegal activity.

With such uncertainty over marijuana and to protect Minnesotan’s enjoyment of recreational marijuana, Minnesota needs to follow Colorado’s lead in clarifying that a canine sniff using a marijuana detecting drug dog constitutes a search that must be supported by probable cause.⁹ In McKnight, the Colorado Supreme Court considered the effect that the state’s legalization of marijuana had on the constitutionality of a search that involved a drug detection dog trained to alert to marijuana.¹⁰ In this case, McKnight was stopped for failing to signal.¹¹ Due to the truck previously having been parked outside a residence where drugs were found by officers two months ago and the officer recognizing the driver as someone who used methamphetamine in the past, the officer requested a drug detection dog be brought to the scene.¹² The drug detection dog that was brought to the scene was trained to alert to marijuana, ecstasy, heroin, and methamphetamine.¹³ McKnight argued that the drug detection dog intruded on his reasonable expectation of privacy and that the officers lacked probable cause to conduct the post-sniff hand search of the vehicle.¹⁴ The People’s counterargument to McKnight’s contentions was that despite Colorado’s legalization of marijuana, in many circumstances marijuana still constitutes contraband and is still federally prohibited, thus the canine sniff was “not a search requiring so much as reasonable suspicion,” and that a drug dog trained to alert to marijuana stills gives law enforcement probable cause to search.¹⁵ The Colorado Supreme Court held that a dog sniff by a drug detecting dog trained to detect marijuana can reveal legal activity and thus is a search under the Colorado Constitution.¹⁶ In departing from federal precedent, the court acknowledged that, unlike federally, it is not unlawful to possess small amounts of marijuana in Colorado.¹⁷ As such, an alert from a drug detection dog trained to detect marijuana does not determinatively answer if illegal narcotics are present in the vehicle.¹⁸ For those reasons, a dog sniff by a drug dog that alerts to marijuana is a search under the Colorado Constitution.¹⁹

The Colorado Supreme Court in McKnight also noted that “though we are the first court to opine on whether the sniff of a dog trained to detect marijuana in addition to other substances is a search under a state constitution in a state has legalized marijuana, we probably won’t be last.”²⁰ It is now the Minnesota courts’ turn to ensure that Colorado courts are not the last to protect its citizens from drug dog sniffs that reveal legal activity. Minnesotans who wish to enjoy the legalization of recreational marijuana should not have to worry that their use of recreational marijuana could cause a drug dog’s alert on their vehicle and cause the officers to search their vehicle based on them partaking in a legal activity.

* Isabella Spence, J.D. Candidate, University of St. Thomas School of Law Class of 2024 (Publications Editor).

1. Minn. Stat. §§ 342.09(1)(a)(1)–(2) (2024). ↩︎
2. Id. ↩︎
3. People v. McKnight, 446 P.3d 397, 412 (Colo. 2019). ↩︎
4. See Jennifer Hoff, Legalizing Pot in Minnesota leads to the Early Retirement of Some Police K9s, KARE11 (Aug. 9, 2023, 9:53 PM CDT), https://www.kare11.com/article/news/local/legalizing-pot-in-mn-leads-to-the-early-retirement-of-some-police-k9s/89-ba4191d0-a920-4917-a73d-88ddabe5cb50. ↩︎
5. Id. ↩︎
6. Id. ↩︎
7. Id. ↩︎
8. Specifically, the law only allows possession of up to two ounces of marijuana to be transported or possessed in public. Minn. Stat. §§ 342.09(1)(a)(1)–(2) (2024). ↩︎
9. McKnight, 466 P.3d at 412. ↩︎
10. Id. at 399. ↩︎
11. Id. at 400. ↩︎
12. Id. at 399–400. ↩︎
13. Id. at 400. ↩︎
14. Id. at 399. ↩︎
15. Id. at 399–400. ↩︎
16. Id. at 410. ↩︎
17. Id. at 406–408. ↩︎
18. Id. at 406. ↩︎
19. Id. at 410. ↩︎
20. Id. ↩︎