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What happens when marijuana is legalized, and law enforcement continues to use drug dogs that are trained to detect marijuana?

Although the U.S. Supreme Court has held, in U.S. v. Place, that a drug dog sniff is not a “search” for purposes of the Fourth Amendment, the landscape is changing in states where marijuana is now legal.

As of today, I count 35 states plus the District of Columbia (not South Carolina) that have legalized recreational marijuana, legalized medical marijuana, or decriminalized small amounts of marijuana. Is a drug dog alert probable cause to search if the dog is trained to detect a substance that is perfectly legal?


Although the U.S. Supreme Court reversed the defendant’s conviction in U.S. v. Place due to the unreasonable length of the detention, they also held that a drug dog sniff is not a search for purposes of the Fourth Amendment because “the sniff discloses only the presence or absence of narcotics, a contraband item:”

A “canine sniff” by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

Sound reasoning to support making narcotics officers’ jobs easier. Except it is no longer sound reasoning in states where marijuana is legal.

A sniff by a drug dog trained to detect marijuana now exposes noncontraband items. In states where marijuana is now legal, people are much more likely to have legal amounts of marijuana in their glove box, their trunk, or their home than they are to have other illicit drugs.


In a Colorado Court of Appeals decision earlier this year, the Court reversed a conviction based on a drug dog search and based their decision on the Colorado State Constitution rather than the federal Fourth Amendment.

Two out of three justices found that the search of a vehicle by a drug dog trained to detect marijuana constitutes a search that requires a reasonable suspicion of criminal activity. Because there was no articulable reasonable suspicion in this case, the conviction was reversed.

Two out of three justices also found that the drug dog’s alert, under these circumstances, was not probable cause to search the defendant’s vehicle. Because the dog was trained to alert to the scent of cocaine, heroin, ecstasy, methamphetamine, or marijuana, the dog was likely to alert to a substance that is perfectly legal under Colorado law and therefore would not be an indication of criminal activity.

As the laws change and public opinion about marijuana prohibition changes, Fourth Amendment law is going to have to change also. Probable cause that a suspect is engaging in activity that is not a crime is not probable cause…


As more states legalize marijuana, drug dogs will have to be retrained or newly trained dogs who do not alert to the smell of marijuana will have to be brought in.

Possession of marijuana is also illegal under federal law, although rarely enforced. This means that federal courts could find that the odor of marijuana is still probable cause even though it is not illegal under state law. But, would it be reasonable for a state law enforcement officer to detain a person based on an alleged violation of federal law when state law makes the same conduct legal?

As state courts in states where marijuana is legal decide this issue, they are well-advised to base their decisions on state constitutional provisions as Colorado’s appellate court did. The U.S. Supreme Court is likely to revisit this issue sooner or later, but, regardless of their interpretation of the Fourth Amendment, they cannot disturb a state court’s decision that is based on their state’s constitutional protections.


Marijuana is not legal anywhere in South Carolina, SC police will take you to jail even for small amounts, and an alert by any drug dog is probable cause to search in South Carolina.

Your drug crimes defense lawyer will get the evidence in your case, review the videos and reports, and help you to retain a drug dog expert to challenge the search when appropriate. In most cases, there is no reason for you to walk away from a marijuana arrest with a conviction – even in the worst cases, you may still have options to keep the arrest off your record.

If you have been arrested and charged with possession of marijuana in Myrtle Beach, schedule a free consultation with a Myrtle Beach criminal defense lawyer on the Axelrod team. Call us at 843-353-3449 or fill out our contact form today.

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