Whether a warrantless sniff by a dog trained to reliably alert to legal possessions constitutes a search under the Fourth Amendment

The recent legalization of CBD has changed the legal landscape for searches by drug-sniffing dogs, but some police departments have failed to adapt. This Court’s Fourth Amendment precedent dictates that when police use a device that is not in general public use to explore the contents of a constitutionally protected space, they violate a reasonable expectation of privacy. But there is a canine exception to this rule. Because a well-trained drug dog reveals only contraband (which no one can reasonably expect to remain private), a wa rrantless sniff by a well-trained dog is permitted. In other words, sniffs by dr ug-detection dogs that alert “only to contraband” are not searches. Illinois v. Caballes , 543 U.S. 405, 409 (2005). The dog in this case could not distin guish illegal marijuana from legal CBD. And so, his sniffs did not reveal only the presence of contraband. They also revealed the presence of legal CBD. Thus, the ca nine exception does not apply here. The Seventh Circuit failed to apply these principles, instead holding that sniffs are not a search under the Fourth Amendmen t, even when the dog’s training means that it will consistently alert to the possession of legal substances. Consequently, the millions of Americans who use legal CBD are subject to warrantless searches by this opinion. This error presents an important question affecting constitutional rights, which this Court can correct by applying lo ngstanding Fourth Amendment principles. The question presented is: Whether a warrantless sniff by a dog trained to reliably alert to legal possessions constitutes a search under the Fourth Amendment.