But marijuana-trained canines cannot detect a difference between hemp and illicit marijuana. Because these canines no longer detect only contraband, the “only-contraband” exception should no longer apply–a canine sniff is a search that requires probable cause.
Authors
HEISER, OLIVIA PHELAN
Abstract
The 2018 Farm Bill removed hemp from the Schedule I list of the Controlled Substances Act. This legal change caused law enforcement agencies and courts to reanalyze assumptions made in routine investigation tactics and prior caselaw. Some law enforcement agencies still use marijuanatrained canines. Previous Supreme Court cases have held that a sniff by a law enforcement canine is not a Fourth Amendment search because these canines detect only contraband. But marijuana-trained canines cannot detect a difference between hemp and illicit marijuana. Because these canines no longer detect only contraband, the “only-contraband” exception should no longer apply–a canine sniff is a search that requires probable cause. In United States v. Deluca, the Tenth Circuit held that, even in light of the 2018 Farm Bill, a law enforcement canine can still support probable cause. But Deluca did not grapple with Supreme Court precedent explaining when use of a sense-enhancing technology constitutes a search requiring probable cause. Even though the opinion was unpublished, subsequent opinions in other jurisdictions cite Deluca to conclude the question has been asked and answered. Deluca overlooks key reasoning from Supreme Court jurisprudence on canine sniffs and must be carefully analyzed to prevent it from metastasizing in other circuits. Similarly, in United States v. Plancarte, the Seventh Circuit held that a law enforcement canine sniff is not an unreasonable search. Plancarte emphasized that a canine sniff’s limited intrusiveness does not implicate a reasonable expectation of privacy. Deluca and Plancarte signal a troubling shift in the face of advancing law enforcement sense-enhancing technology.
Subjects
LAW enforcement agencies; LAW enforcement; APPELLATE courts; CONSTITUTIONAL courts; CONTROLLED substances
Publication
Wisconsin Law Review, 2024, Vol 2024, Issue 6, p1937
ISSN
0043-650X
Publication type
Academic Journal
DOI
10.59015/wlr.AUPM7295
