A nugget of marijuana
Credit: Darrow Montgomery/FILE

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The Metropolitan Police Department’s canines still search for marijuana even though the substance has been legalized in D.C. since 2015, according to a new report from the Office of Police Complaints. OPC Director Michael Tobin says canine searches of vehicles in D.C. are the basis for several complaints for unlawful searches that come to his office.

“There’s a typical pattern,” Tobin says. “It’s a traffic stop of a Black male, in which he’s detained unnecessarily long in order for a canine to come to the scene and conduct a drug sniff. Overwhelmingly, that’s the scenario that’s brought to our attention.”

But that’s not the picture MPD painted for the Washington Post. MPD spokesman Dustin Sternbeck told the paper that “few of the department’s dogs were used for street-level drug enforcement, and most are trained to detect explosives and firearms.” In an email to Loose Lips, Sternbeck reiterates that MPD’s canines “are primarily focused on illegal gun recoveries and/or explosives detection.” He says one canine is assigned to the Narcotics and Special Investigations Division for “larger scale narcotics operations.”

“Dogs were not being used for large scale operations,” Tobin says. “These were all traffic stops. On a couple occasions, they were pedestrian stops. But primarily traffic stops. And it was recently too, not six years ago.”

OPC made several recommendations, including that MPD should stop using dogs trained to detect marijuana. MPD canines are trained to search for cocaine, ecstasy, methamphetamine, and heroin in addition to marijuana. They can smell the difference between the substances, but they give the same signal when they find any of them, according to the OPC report.

Sternbeck told the Post that the department agrees with the recommendations and won’t use drug dogs for traffic stops and routine patrols. The department will phase out canines trained to smell marijuana, Sternbeck told the Post.

But LL wonders why the department waited until nearly six years after marijuana was legalized before it decided to take action.

Although the department updated its internal policies to mesh with the new legal landscape, the OPC report indicates that at least some officers were unaware of how the updates apply to canine searches.

“Complaints surrounding this issue portrays [sic] the constant damage to community trust that is enabled when the MPD continues its canine policies without providing its Canine Handlers or other MPD Officers any guidance on how to reconcile the legalization of marijuana in a legal landscape where marijuana is no longer considered contraband in DC,” the report says.

The OPC report focuses on one case in particular, where a canine officer and a sergeant were apparently unaware of the implications for canine searches in MPD’s policy updates. A citizen complained to OPC about what they believed was an illegal search using a canine.

The report describes how a sergeant instructed a canine officer to “sweep a vehicle that was under investigation for narcotics.” The officer followed the sergeant’s order, and the dog alerted to the smell of drugs.

When officers searched the vehicle, they only found marijuana, the OPC report says.

In an subsequent interview with OCP in March 2021, the canine officer, who is unnamed in the report, said they “were unaware of any policy updates regarding sweeps for canines trained to detect marijuana” and was following the sergeant’s instructions in order to avoid an insubordination charge. The officer had been working as if legalization had never happened, the OPC report says.

In 2013 and 2015, MPD issued new rules for what officers can do when they encounter marijuana in light of the changes in the law.

Special order 13-08 says generally officers cannot mess with medical marijuana patients. Special order 15-07 says officers cannot apply for a search warrant if the sole basis is to search for marijuana. Officers also cannot use the smell of marijuana to establish reasonable suspicion of a crime. That provision is also written into law.

If an officer can’t use a skunky stench to establish reasonable suspicion, neither can dogs. “At least not without violating a DC resident’s constitutional right to a reasonable expectation of privacy, that is now extended to the possession of marijuana,” the OPC report says. Even if a dog alerts to drugs and a search turns up more than the two ounces a person is legally allowed to have in D.C., the search would still be improper, OPC says.

Tobin says it’s unacceptable that MPD hasn’t changed its operations in the six years since recreational marijuana was legalized. His office previously issued a report calling for MPD to update its policies, some of which are 30 years old.

“They have not done that,” he says. “It’s another example of why we need different procedures for MPD policies.”

A recent bill introduced by D.C. Council Chairman Phil Mendelson would, among other things, require the chief to submit proposed policy changes to a newly created “Police Accountability Commission” for comments.

“The community has to have more direct input,” Tobin says. “I think if we did, things like this would not be happening.”

The OPC report also notes that police dogs cost around $30,000 or more per dog. That estimation doesn’t include annual recertification, equipment, supplies, and care. MPD currently has 21 canine teams, according to its website. Four new teams are in training.

“With such expensive and continuously rising costs required to maintain an effective canine unit, MPD should prioritize the proper deployments of their drug detection canines,” the OCP report says. “MPD cannot afford to continue financing marijuana trained detection canines on their current practices when it leaves MPD susceptible to additional legal and policy liability that could cost the department more money in potential litigation costs.”

The Police Reform Commission, a separate body which spent months reviewing MPD’s practices from top to bottom, also weighed in on the department’s use of canines.

In section five of the 259-page report, PRC recommends the Council impose a moratorium on MPD’s use of drug sniffing canines until the department produces data that show how they’re used and whether they’re effective.

PRC could not say whether MPD uses canines properly because the department hasn’t released data that would allow for such an analysis.

“The Commission has not seen any data on canine effectiveness with drug and gun sniffs,” the PRC report says. “MPD also has not published any of the data needed to determine whether MPD officers are prolonging traffic stops to await the arrival of dogs,” which would violation a U.S. Supreme Court decision.

However, MPD did provide data showing their dogs bit five people, all of whom are Black, between 2018 and 2020. From 2014 to 2017, dogs bit 15 people, according to MPD data released to PRC.

Tobin similarly doesn’t have access to MPD’s statistics, so he could not say how often the department uses canines during traffic stops or to execute a search warrant.

“No one knows because only they have the statistics, which is another problem with how our system works,” he says. “No one can really tell how many times it happens. Only MPD knows, and it’s a big secret apparently.”