K-9 case law will demand that K-9 teams train well and keep detailed training records.IMAGE: TUREK90 from Pixabay
Kmiecik's 28-year law enforcement career, 20 years of which were dedicated to K9 handling, has given him valuable insights into current legal issues facing police K-9 teams. Kmiecik now runs K9 Legal Updates and Opinions, a website Terry Fleck, a pioneer in the field, started. In this role, he guides law enforcement agencies, -K9 handlers, and trainers through the complex world of legal challenges that come with working dogs.
In this article, we’ll explore Kmiecik’s thoughts on the major legal issues K9 teams face, how they’ve evolved over the years, and what handlers need to keep in mind as they work their K9s in the year ahead.
The Changing Landscape of K9 Law
Michael W. Kmiecik II, owner of owner, consultant and trainer for Sheepdog Guardian Consulting LLC, was a police K-9 handler for much of his career. Here he is pictured with his police K-9, Luther.IMAGE: Sheepdog Guardian Consulting LLC
Police K9s traditionally focused on apprehension, with bite work being a core component of their training, he explains. However, the legal ramifications of using force have become front and center in recent years.
According to Kmiecik, the use of K9s in apprehensions is now subject to increased scrutiny regarding legal boundaries and best practices.
“I’m not saying that anything we were doing was necessarily bad. But case law and society in general has changed, and we are seeing dogs used in a more judicious manner than previously,” he says.
A shift in legal rulings and public perceptions has put greater emphasis on proper training, de-escalation, and the careful application of force when police dogs are used, he stresses.
“While the primary function of K9s in patrol work still includes tracking, evidence recovery, and suspect apprehension, the focus is ensuring that force is used appropriately,” Kmiecik explains. “Handlers must understand the legal consequences of deploying a K9 in different situations.”
K9 teams also face challenges with detection dogs, especially in narcotics and explosives detection. Kmiecik explains the legal landscape surrounding search-and-seizure laws directly affects how these dogs are used, and handlers must be well versed on the rules governing probable cause and search warrants.
For example, in the case of narcotics detection, if a K9 alerts to a vehicle, it may give law enforcement officers probable cause to search the area. However, recent court cases have raised questions about the reliability of K9 alerts and whether they provide enough grounds for searches without further corroborating evidence.
In fact, just last month in Florida, the Fifth District Court of Appeals ruled that a K-9’s nose is no longer sufficient for a law enforcement officer to search for marijuana without other evidence of illegal marijuana possession.
“Legal challenges have emerged in the last few years questioning whether a K9 alert should be sufficient probable cause to search a vehicle or a residence,” he says. “The courts are increasingly focused on how the dogs are trained and how reliable their alerts are.”
Kmiecik says that as challenges increase, so too does the need for proper K9 certification, training, and documentation. A handler must be able to demonstrate their dog is trained in accordance with recognized standards and is reliable in detecting specific substances, whether drugs, explosives, or other materials, he says.
Patrol Considerations
As K9 teams move into 2025, Kmiecik believes there are several key legal and operational factors that handlers must be aware of.
He starts on the patrol side of things, where a 9th Circuit Court of Appeals ruling in Rosenbaum v. San Jose is questioning K-9 bites.
In the case in question, Zachary Rosenbaum claims a police dog allegedly bit him for over 20 seconds after he had surrendered and lay prone on his stomach with his arms outstretched. Rosenbaum sued the City of San Jose, and the officers involved under 42 U.S.C. § 1983, claiming excessive force in violation of the Fourth Amendment. He alleges the lengthy dog bite resulted in serious cuts and lasting nerve damage in his arm.
The defendants argued qualified immunity, which protects police officers from personal liability and damages for actions taken in their official capacity. The Ninth Circuit Court of Appeals rejected the assertion of qualified immunity, determining that a 20-second delay in intervention following the suspect's surrender constituted a violation of constitutional rights.
The court cited Watkins v. City of Oakland, California, a 9th Circuit ruling that said once a person has surrendered and is under an officer’s control, the dog has to be removed from the bite, and indicated a jury would need to decide whether police had Rosenbaum in control during this bite.
Because suspect control is in question, Kmiecik returns to the five rules that have come out of the country’s biggest K9 cases. Three of them came out of a single case, Kerr v. City of West Palm Beach, Florida. The ruling in this case, he says “found that officers must have complete control over the actions of the dog. The handler has to be able to recall or restrain the dog before a bite occurs, and the handler has to quickly remove the dog from an apprehended suspect.”
A fourth rule coming out of case law finds there must be an immediate release of a fully surrendered suspect who is under the officer’s control. While a fifth rule coming out of Kuha v. City of Minnetonka found “it would be objectively unreasonable to use a dog to bite somebody without first giving the person the opportunity to peacefully surrender.”
“It is that fourth rule, that is a big issue on the patrol side of things,” Kmiecik says. “I think the disconnect is that what police officers consider fully under control and what the court deems as being under control differ. Most police officers view under control as when the suspect is in handcuffs.”
National canine associations already require handlers to demonstrate that they can verbally call a dog off a bite to receive certification, Kmiecik says.
“What Rosenbaum did, in my opinion, is solidify that training point,” he says. “Once the officer can see the suspect’s hands, that they are not a threat and that they are overtly surrendering and complying with officer’s orders, they need to be able to verbally call off the dog.”
Search and Detection Considerations
Legal challenges will continue to center on K9 reliability, especially in drug detection and search-and-seizure cases, according to Kmiecik, who says handlers must keep detailed records of their dog’s training and certifications to defend their actions in court if necessary.
“Because we have so many scientific publications and best practices available to us, the dog’s training is becoming a question in the courts,” he says. “The No. 1 concern is the dog and handler training and certifying to a double-blind standard.”
He explains there are three kinds of training scenarios. One, where the dog handler knows the outcome of the scenario. Then there is single-blind scenarios, where the handler and his K9 do not know the outcome, but a trainer/certifying agent does. Finally, there are double-blind scenarios where the handler, certifying agent/trainer and the K9 do not know the outcome.
“We have learned that dogs are very good at reading human behavior, so if there is someone who is present that knows the outcome, it could cue the dog into an alert,” he says. “Double-blind scenarios eliminate any potential for a human to cue the dog.”
Another argument arising in the courts questions whether the K-9 touching a vehicle during a search is trespassing into a constitutionally protected area.
“In United States v. Place, it was deemed that the air surrounding an inanimate object does not have any Fourth Amendment protection,” he says.
However, some cases argue that the Fourth Amendment protects physical items, like cars, during traffic stops. “In 2023, the Idaho Supreme Court issued an opinion in State v. Dorff. In this case, the dog put his paws on the vehicle to sniff at a higher level,” he says. “The Idaho Supreme Court said when a dog’s paws touch the side of a vehicle, the dog trespasses into a constitutionally protected area and it’s no longer a free air sniff with constitutional protection.”
Because of this ruling, Kmiecik says, “we are seeing that argument pop up in state and federal courts all over the United States.”
While most courts have dismissed this claim, recent opinions from Idaho and some lower federal courts offer a different perspective. Now, he says, there's a division of opinion in the courts on this matter.
“The Iowa Supreme Court just looked at the issue and rejected it. They said touching the outside of the vehicle does not make it a [warrantless] search per se,” he says.
Kmiecik advises that agencies can solve this problem by making sure detection dogs don't touch what they're sniffing. “A dog can sniff the exterior of a vehicle without touching it,” he says. “Look at explosive detection dogs. If they find a possible explosive device, they alert to it but do not touch it.”
Marijuana's Legal Concerns
Another concern cropping up surrounds marijuana. If a dog alerts to marijuana, they cannot tell the difference between legal or illegal versions of the substances in states where marijuana is legal.
“The question then becomes what is probable cause,” he says. “The courts have rejected any bright-line rules or rigid mechanistic tests for probable cause. Probable cause is there a fair probability that contraband or evidence of a crime will be found in a particular area.”
Here, the courts have upheld marijuana-trained dogs, even in states where marijuana is legal. The rulings find the scent of marijuana establishes probable cause to a dog because a dog can also smell cocaine, heroin and methamphetamines. “There would be a fair probability that these odors are also present,” he says.
However, the Supreme Court of Colorado and the State of Oregon have rejected this premise. “They have said that a marijuana-trained dog could not establish probable cause for someone over the age of 21, because in those states you can possess marijuana without restrictions,” he says. “But so far, every other state has upheld it.”
Another emerging concern is the growing legal ambiguity between marijuana and its legal cousin, hemp. Both marijuana and hemp are from the same cannabis family, Kmiecik explains, and share similar odor profiles, which some say could confuse a trained drug dog.
However, recent studies, such as one conducted by Florida International University (FIU), found that most dogs can differentiate between the two substances after just a few training sessions, even though both substances contain THC. 
Kmiecik says this research challenges assumptions that dogs are simply alerting to THC. It shows dogs can differentiate between the two based on the odor composition and its volatile organic compounds.
This development is crucial for law enforcement agencies because hemp is legal federally. Kmiecik advises agencies to meticulously document training distinctions to show that their dogs can reliably differentiate marijuana from hemp.
Beyond marijuana and hemp, Kmiecik says the rise of fentanyl has created another challenge for detection dogs.
Fentanyl, a potent synthetic opioid, is often mixed with other drugs such as heroin, complicating detection efforts. There is a growing concern in the courts that dogs trained to detect heroin may also alert to fentanyl due to the substances' similar chemical properties, he says.
This issue is still in its early stages, and courts have yet to establish comprehensive legal precedent regarding fentanyl detection by K-9s, he adds.
Best Practices for Agencies
Kmiecik emphasizes law enforcement agencies must proactively adapt training protocols to address evolving legal issues in detection work. He recommends:
- Continuous Training and Record-Keeping: Agencies should ensure their K-9 units are regularly trained on the distinction between marijuana and hemp, documenting each dog’s ability to differentiate between the two substances. This documentation is critical for ensuring that any legal challenges related to K-9 alerts are met with proper evidence.
- Collaboration with Prosecutors: Building strong relationships with local district attorneys can help clarify the legal thresholds for probable cause in marijuana-related cases. Regular discussions between canine handlers and prosecutors can ensure that everyone is aligned on how K-9 alerts should be interpreted in light of the changing laws.
- Comprehensive Policy Reviews: Law enforcement agencies should regularly review and update their policies regarding the use of K-9s in drug detection, especially in the context of evolving drug laws. This includes ensuring that their K-9s are properly trained on new substances, such as fentanyl, and that their records are updated accordingly.
- Adapting to Legal Shifts: Agencies should stay informed about legislative changes regarding marijuana, hemp, and fentanyl. Proactive measures can prevent the premature obsolescence of K-9 units and ensure that their officers continue to have access to one of the most effective tools in drug detection.
Despite the legal hurdles posed by the evolving landscape of drug legalization, K-9 units remain one of the most effective and powerful tools in law enforcement. Properly trained dogs have proven invaluable in detecting illegal substances, locating suspects, and even de-escalating situations that may otherwise escalate into violence.
As law enforcement agencies continue to adapt to changes in the legal environment, it is crucial that K-9 units evolve alongside these shifts, ensuring that they remain an essential part of the toolkit in modern policing. With proper training, documentation, and collaboration with legal experts, K-9 teams will continue to play a critical role in keeping communities safe while navigating the complexities of today’s legal landscape.
