Law and odor: Police hazy on how to use drug-sniffing dogs under Texas hemp law
By MARK D. WILSON | Austin American-Statesman | Published: July 13, 2019
AUSTIN, Texas (Tribune News Service) — Law enforcement agencies in Texas are adjusting to a new normal after state lawmakers this year legalized hemp.
Hemp, like marijuana, comes from the cannabis plant. However, Hemp, as defined by Texas law, can be differentiated from marijuana by its concentration of tetrahydrocannabinol, or THC, which is what produces intoxicating effects. Hemp has a low concentration of THC – less than 0.3%. Marijuana, on the other hand, has anywhere from 5% to 35%, according to the advocacy group Ministry of Hemp.
But because the odor of burning marijuana and hemp, and the THC both contain, is the same, both officers and drug dogs face new challenges to establish probable cause during searches.
In Colorado, where small amounts of marijuana were legalized in 2012, drug dog searches became a hot-button issue because the animals would alert officers to a legal amount of marijuana. The state's Supreme Court in May ruled that police had to establish probable cause before using a drug-sniffing dog, a move that led authorities to roll back the role of dogs in drug cases, the Denver Post reported.
Now, even though Texas has not yet given a green light to pot, Austin police and Travis County sheriff's deputies may be headed in the same direction.
"What we have told our officers is don't necessarily use odor alone for probable cause, a lot of times there are other indicators," said Austin Police Assistant Chief Jennifer Stephenson. "That is just one piece. Officers would be detailing what the other indicators are that led them (to search) ... That's a new directive pending because of this new law."
Local law enforcement can still make arrests and prosecute marijuana possession, but exactly how they will navigate the new waters where hemp is legal is a bit of a question mark.
Travis County sheriff's office Maj. Craig Smith said his agency has implemented a similar directive to deputies, requiring them to only use the odor of marijuana or a positive alert from a dog as part of building probable cause.
"One of the (areas where) this bill hinders us a little bit is that the smell of burning marijuana alone has always been held up as probable cause for an officer when it comes to detention and for arrest, search and seizure. So it gave us the ability to search a vehicle based on our training and experience. And that's just the smell from an officer," he said.
That's no longer the case, Smith said.
"We're not making policy changes just yet because we feel like this is too new," he said. "We know that the district attorney and the county attorney, and to be quite honest, not just here in Travis County, but all of the state of Texas, are trying to determine the best ways to navigate this new bill and how it affects things."
The sheriff's office currently has five drug dogs assigned to patrol, two assigned to schools and one assigned to the jail, where hemp is still considered contraband.
"We're still going to use the dogs, we're still going to move forward with alerts on the dogs, (but) those just help us build probable cause," he said. "There's just a little more to it, whereas in the past, we would use the alert as a standalone reason for probable cause."
In the past, officers have also built cases for probable cause using observable physical evidence or citing suspicious behavior during encounters.
The new law has already resulted in nearly 100 marijuana cases being dropped in Travis County, including 32 felony and 61 misdemeanor cases.
In a statement last month, Travis County District Attorney Margaret Moore said Austin police and Texas Department of Public Safety crime labs don't have the ability to test for marijuana concentration, and won't for eight to 12 months. Without that measure, officials can't determine whether a substance contains enough THC to be illegal.
"Our only other option will be to pay private labs for each submission," Moore said. "Additionally, the testing lab will have to be paid to testify, which will incur additional expense. And, of course, since we only know of one lab that is presently able to this testing, the time to get results could be quite lengthy."
Stephenson said a working group made up of Austin police, city legal staff, forensics officials and the Travis County district attorney's office will meet for the first time next week to discuss the issue. While the full effect of the law hasn't really been seen at this point, she said it will affect Police Department training and policies further in the future.
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