Legal Weed Week: K-9s and your vehicle

The smell of weed during a traffic stop used to suggest a crime's being committed. But Missouri's Amendment 3 throws that presumption out the window
Published: Feb. 9, 2023 at 10:00 PM CST|Updated: Feb. 9, 2023 at 10:30 PM CST
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CAPE GIRARDEAU, Mo. (KFVS) - One of the questions we’ve been asked most often as we looked into your rights and Missouri’s Amendment 3 - what about police K-9s?

Finding illegal drugs during a traffic stop in Cape Girardeau often falls to one of the department’s four K-9 teams.

Officer Joseph Whistler and his partner Jango showed us what that can look like.

A sniff of narcotics and Jango alerts Whistler, getting his toy as a reward.

But passage of Amendment 3 means changes to city traffic stops, according to Cape Girardeau Police Chief Wes Blair.

“So, if we walk up on a car and we smell the odor of marijuana, that doesn’t give us the authority to now search that car to look for that marijuana. Unless we suspect something else is going on in that car besides narcotics. Another crime that’s in commission,” he said.

“The amendment doesn’t address K-9s or search by sniff in any way,” said Dexter criminal defense attorney and longtime former prosecutor Russ Oliver.

He said use of a K-9 on traffic stops may come down to the dog’s training and ability.

“When that dog alerts, and he sits down, that officer can’t talk to that dog and say, ‘hey buddy, are we talking about marijuana or are we talking about methamphetamine,’ right? So, if that dog is trained on marijuana, he can no longer establish the probable cause to search that vehicle. Because his training doesn’t differentiate in the way that he alerts.”

Officer Whistler used the smell of methamphetamine for our demonstration.

I asked Chief Blair if legal weed impacts the need for a K-9 program.

“Absolutely not,” he said. “Our canines are trained to track subjects that have run from us. Or maybe have escaped. Or even missing children. They’re trained as protection dogs for their handlers. And they are trained for the whole gamut of illegal narcotics.”

“If we smelled the odor of marijuana, then we would call Paco,” Wayne County Sheriff Dean Finch said. “And Paco would walk the car. And if he alerted, then we’d search the car.”

Sheriff Finch said they’ll also keep using their K-9 program. In fact, he hopes to bring in a new dog later this summer. But Finch said he still worries about other drugs being driven into his county.

“You can have your little bag of a half an ounce of marijuana laying in your console and 50 pounds of meth in the trunk of your car. And our hands are tied.”

And if you think most drivers would not leave their weed out where you can see it, listen to Finch’s chief deputy describe a recent traffic stop.

“We pulled a vehicle over for speeding,” David Snyder explained. “And the person had marijuana hanging from the rearview mirror. The person who was driving. He basically was kind of proud that we couldn’t do anything about it. We can ask to search, but if they tell us no, we can’t do anything about it.”

“I think it would be virtually almost impossible for an officer to develop probable cause to search based on plain view of marijuana,” Oliver explained. “And if he can say, that’s clearly more than 3 ounces. It looks like 50 pounds of marijuana. He still would have to know that that particular driver, that particular suspect, has two prior civil forfeitures or civil penalties that probably aren’t going to be enforced, right?”

Chief Blair said the way Amendment 3 is written, drivers can even go a step further.

“Right now, our understanding is, yes, you can drive down the street smoking marijuana. We just don’t know. There’s nothing in the amendment that articulates that you can or cannot.”

Attorney Russ Oliver said this is another example of the language in Amendment 3, and the need for city and county governments to pass ordinances if leaders want to restrict marijuana use.

“This amendment doesn’t make driving with it in your vehicle or smoking it while you’re in your vehicle or smoking it in a public place illegal. What it does, it says it does not restrain local municipalities. It gives local control, to towns to counties, to decide if they are going to allow that or not,” he continued.

You’ve heard a lot this week about the differences between alcohol and weed in Missouri.

Both are legal substances, but while one is regulated by state law and local ordinances, the other is not.

Click here to read more about some of the unique differences between the two, and why having a constitutional right to legally use weed does not protect you from some of the consequences.