August 20, 2017

Colorado Court of Appeals: Drug Dog Sniff for Marijuana Requires Reasonable Suspicion of Criminal Activity

The Colorado Court of Appeals issued its opinion in People v. McKnight on Thursday, July 13, 2017.

Marijuana—Dog Sniff Search—Probable Cause—Reasonable Suspicion—Suppression of Evidence—Amendment 64.

At defendant’s suppression hearing, Officer Gonzales testified that he saw a truck parked in an alley that then left the alley and eventually parked outside a house for about 15 minutes. The house had been the subject of a search roughly seven weeks earlier that turned up illegal drugs. When the truck drove off, Officer Gonzales followed it, saw it turn without signaling, and pulled it over. Defendant was driving the truck. The officer recognized defendant’s passenger from previous contacts with her, “including drug contacts” involving the use of methamphetamine. At Officer Gonzales’s request, Sergeant Folks came to the scene with his certified drug-detection dog, Kilo. Kilo alerted, the truck was searched, and the officers found a “glass pipe commonly used to smoke methamphetamine” that contained white residue. Defendant was charged with possession of a controlled substance and possession of drug paraphernalia. Defendant moved to suppress the evidence found in his truck, arguing that the police violated his constitutional rights by conducting a dog sniff search without reasonable suspicion and by otherwise searching his truck without probable cause. The court denied the suppression motion, the case proceeded to trial, and defendant was convicted of both counts.

On appeal, defendant contended that under the Colorado Constitution, the deployment of the drug dog was a search requiring reasonable suspicion of criminal activity. The court of appeals first noted that Amendment 64 legalized possession for personal use of marijuana of one ounce or less by persons 21 or older. Therefore, under Colorado law, a drug dog’s alert can reveal, in addition to contraband, the presence of something in which a person has a legitimate expectation of privacy (i.e., the possession of one ounce or less of marijuana). Consequently, a dog sniff should be considered a “search” for purposed of article II, section 7 of the state constitution where the occupants of the vehicle are 21 years or older.

Defendant also argued that the dog’s alert, in combination with other relevant circumstances, did not give police reasonable suspicion to search his truck and thus the district court erred in denying his motion to suppress. A warrantless search effected by a dog sniff of the exterior of a vehicle must be supported by reasonable suspicion. Under the circumstances of this case, the police lacked the requisite reasonable suspicion, the dog sniff was invalid, and the methamphetamine recovered as a result should have been suppressed.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Print Friendly, PDF & Email

Speak Your Mind

*