Defining ‘Contraband’

Colorado Supreme Court will hear marijuana case on use of drug-sniffing dogs in vehicle searches

The Colorado Supreme Court last week announced it will hear a marijuana case that once again highlighted the gray area of the law created by the conflict between marijuana’s legalization in Colorado and its illegal status in federal jurisdictions.

In People v. McKnight, the Supreme Court will decide whether the Colorado Court of Appeals made a mistake in ruling that police had probable cause to search a vehicle after a drug detection dog, which was not trained to differentiate between marijuana and other substances, gave a positive indication of the presence of narcotics in a vehicle.

The Supreme Court granted review of issues framed slightly differently than the Court of Appeals’ approach to People v. McKnight. To make a ruling on probable cause, the court will first consider whether, in light of marijuana’s legal status under Colorado law and illegality under federal law, marijuana is considered “contraband” in the context of a drug detection dog’s sniff. The Court of Appeals approached the case by considering the question of whether using a dog trained to detect marijuana to sniff a legally stopped vehicle constitutes a “search” for purposes of the constitutional protections against unreasonable searches.

Sam Kamin, Vicente Sederberg marijuana law and policy professor at the University of Denver Sturm College of Law, said should the Supreme Court eventually rule that marijuana is contraband for the purpose of a dog’s sniff, the decision wouldn’t affect state possession laws.

To read this story and other complete articles featured in the January 22, 2017 print edition of Law Week Colorado, copies are available for purchase online.