A federal appeals court has rejected an argument that a drug dog’s ability to detect legal hemp made its roadside sniff unconstitutional.
The U.S. Court of Appeals for the Tenth Circuit issued the September 8 decision in United States v. Ostertag, upholding a firearm conviction stemming from a Wyoming traffic stop.
George Ostertag argued that the dog, trained to detect marijuana and other drugs, could also reveal lawful activity because hemp and marijuana can smell identical. Congress legalized qualifying hemp in 2018.
The court concluded that Ostertag had not established that the initial exterior sniff violated a legitimate expectation of privacy. It reasoned that detecting an odor does not necessarily disclose its source or purpose, including whether it relates to lawful activity.
Officers subsequently searched the vehicle and discovered a pistol. Although the dog later placed her paws on the vehicle, the courts found she had already alerted before that contact, establishing probable cause.
The panel affirmed Ostertag’s conviction for possessing a firearm as a convicted felon. He received an 18-month prison sentence followed by three years of supervised release.
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