October 23, 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.

Tenth Circuit: Combination of Factors Sufficient to Provide Reasonable Suspicion for Vehicle Search

The Tenth Circuit Court of Appeals issued its opinion in United States v. Moore on Thursday, July 30, 2015.

Tracey Moore was driving through Oklahoma when he was pulled over for going three miles per hour over the speed limit. The trooper ordered him to get out of the car give the officer his license and registration. Moore complied, meeting the trooper in front of his patrol car. The trooper later testified that Moore seemed excessively nervous, even after he advised that he was only going to issue a warning. The trooper completed the warning, returned Moore’s documents to him, and told him to have a good day. Before Moore could go, though, Trooper Villines asked if he could speak to Moore a bit longer. The trooper asked Moore if he had ever been in trouble before. Moore said he had but did not want to discuss the details, adding he “could probably look it up easy enough.” The trooper then asked Moore if he had anything illegal in the car and Moore said no. Trooper Villines asked for consent to search the vehicle and Moore refused. At that point, the trooper advised Moore that he was being detained so a dog could sniff his vehicle.

Approximately two and a half minutes later, Trooper Fike and his dog, Jester, arrived. As they were walking around the rear of Moore’s vehicle, Jester snapped his head around and jumped through the open driver’s side window. Jester had his nose on the center console and was wagging his tail. Villines and Fike then searched Moore’s vehicle. Although they found no drugs, there was a sawed-off shotgun and ammunition in the trunk. Because Moore had a prior felony conviction, he was arrested and indicted on three counts: (1) being a felon in possession of ammunition, (2) knowingly transporting in interstate commerce a sawed-off shotgun, and (3) being a felon in possession of a firearm. He moved to suppress all evidence obtained during the traffic stop, arguing Trooper Villines lacked reasonable suspicion to detain him after the traffic stop was completed and Jester’s entry into his vehicle constituted an illegal search in violation of the Fourth Amendment. The district court denied his motion. Moore pleaded guilty to Count 1, reserving the right to appeal the denial of his motion to suppress. He was sentenced to 24 months’ imprisonment followed by three years’ supervised release.

On appeal, Moore argued the district court erred in denying his motion to suppress because the trooper’s decision to detain him unreasonably exceeded the initial scope of the traffic stop and the trooper lacked reasonable suspicion of illegal activity. The government contended that Moore’s excessive nervousness, his acknowledgment of a prior criminal history, and his admission that he had recently been added to the car’s registration were sufficient to provide reasonable suspicion to Trooper Villines. The Tenth Circuit agreed. Although none of the factors in isolation was enough to support reasonable suspicion, taken as a whole they provided sufficient basis for the dog sniff.

Moore also argued that when the dog jumped into his vehicle the search became unlawful because the dog did not properly alert before jumping into the vehicle and because Jester “was acting like a police officer when he was allowed to go inside [the] vehicle.” The Tenth Circuit disagreed. Following prior precedent, the Tenth Circuit found no error in allowing the dog to sniff the exterior of the vehicle, and because the window was open the officers did not manipulate the evidence to get their desired result.

The Tenth Circuit affirmed the district court’s denial of Moore’s suppression motion.

Colorado Supreme Court: Evidence Produced by Dog’s Sniff for Drugs Rightly Suppressed by Trial Court Since No Suspicion Supported Dog Sniff

The Colorado Supreme Court issued its opinion in People v. Mason on Monday, June 3, 2013.

Interlocutory Appeal—Reasonable Articulable Suspicion—Suppression of Evidence.

The People filed an interlocutory appeal pursuant to CRS § 16-12-102(2) and CAR 4.1, challenging the trial court’s suppression of drugs discovered in defendant’s pickup truck. Grounds for the search came from the alert of a narcotics detection canine led around the vehicle. Although the district court upheld the initial traffic stop, it found that defendant was illegally detained at the time of the dog sniff, because the purpose for the initial stop of his vehicle had already been accomplished and no other reasonable suspicion existed to support further investigation. The court therefore suppressed the results of the subsequent search as the product of an illegal detention.

The Supreme Court affirmed, holding that because the prosecution failed to present any evidence supporting police suspicions that defendant had committed, was committing, or was about to commit a crime other than traffic offenses, they lacked reasonable articulable suspicion to detain him for further questioning or investigation after issuing him a summons and completing the traffic stop. The contraband seized from defendant’s vehicle therefore was properly suppressed as the product of an illegal detention.

Summary and full case available here.