Marijuana legalization changes some law enforcement practices

(Editor's note: This is the second in a series about the recent legalization of marijuana in Montana.)

With recreational marijuana now legal in the state of Montana, law enforcement is making adjustments to deal with possession and use of the long-time illicit substance now being allowed.

According to law enforcement officials, the change in law will result in both minor and significant changes in enforcement practices.

Prior to Jan. 1, recreational use of marijuana has been illegal in Montana since the late 1920s, according to records from the Library of Congress. The bill to amend Montana's general narcotics law to include prohibiting the use, sale or possession of marijuana without a prescription passed the House Health Committee on Feb. 10, 1929 where it had been discussed for a week. The Montana Standard followed the bill's progress through the legislature, describing the week it spent in the House committee as "fun."

Ninety-two years later and Montana lawmakers are now trying to better define the nuances of legal marijuana. In a previous installment of this series, Dawson County Sheriff Ross Canen noted there are still some aspects of the law that are unclear, leaving law enforcement waiting on the legislature for answers.

However, he also noted there are some changes that law enforcement will likely need to make, including retiring drug dogs.

Canen explained that drug dogs used by Montana law enforcement are trained to detect various narcotics, including marijuana. However, being dogs, they cannot communicate which narcotic is detected, only that at least one of four is present. With marijuana possession now legal, a dog that alerts on a narcotic can't justify a search by law enforcement, because it could possibly be alerting to a now legal drug.

"They're trained on four different narcotics, marijuana being one of them. The dog's not telling you which of the four drugs is there, he's just saying the scent is there and since marijuana is legal, if he alerts, you can't use that to secure a search warrant because that's a legal drug now," Canen said.

The Supreme Court of Colorado addressed a similar issue in 2019. Recreational marijuana has been legal in Colorado since 2012. In an appeal, the Court ruled that a 2015 search of a vehicle that resulted in the discovery of illegal drugs and paraphernalia had to be dismissed because the dog used was trained to detect several types of drugs, including marijuana. Other than the dog's alert, the officer had no indication that the drugs in the vehicle were illegal, so the court ruled that a dog trained to alert to marijuana cannot be used before an officer establishes probable cause, as reported by NPR.

Canen noted that there are other methods to detect illegal narcotics, but dogs have proven to be the most efficient method.

"There's some electronic methods but (they are) not as good as the dogs," Canen said.

However, marijuana trained drug dogs won't be completely gone. According to Dawson County High School Principal Spencer Johnson, drug dogs will still be occasionally used in the schools, as possession still remains illegal for those under 21 years old.

Recreational marijuana also remains illegal at the federal level. In ballot initiative 190, the ballot initiative that legalized marijuana in Montana, it is stated that transportation of cannabis across state lines is still illegal. However, it is unclear what effect the difference between state and federal laws will have on inter-agency cooperation between state and federal law enforcement.

Montana Highway Patrol District V Captain Jim Hunter referred all questions regarding the topic to Attorney General Austin Knudsen's office, which did not respond to requests for comment.

Otherwise, under I-190, marijuana is regulated much like alcohol, though with some other restrictions. Sales and possession of the substance is still illegal for anyone under the age of 21, the law does not prohibit employers from disciplining employees who are under the influence while on the job and operating a motor vehicle under the influence is illegal.

With marijuana soon to be commercially available, Canen and Glendive Police Department Chief John Hickman both stated they are expecting a rise in cases of driving while intoxicated.

"I believe it will affect DWIs, I believe those will probably go up. You'll probably have more people driving under the influence than we have had in the past because the availability of marijuana will be a lot greater," Hickman said.

Hickman added that another potential change will be investigating cases involving heavier narcotics could be more difficult, as many of those cases begin with marijuana investigations. Otherwise, he doesn't expect enforcement to change too much as marijuana has been legal at least in a medical capacity since 2004 with the passage of the Montana Medical Marijuana Act, giving officers experience with enforcing legal marijuana restrictions.

"Marijuana has been semi-legal here for quite awhile now, with personal use and things of that nature, so there's already been a lot of adjustment to that already, so it'll probably ramp that up probably just a little bit," he said.

For other aspects of the law, Hickman noted the police department will be in training with the county attorney this week to go over more changes.