The Colorado Supreme Court today delivered an opinion upholding the reversal of a man’s convictions on charges related to methamphetamine possession, based on his challenge to the constitutionality of the search that turned up the drug paraphernalia. The court ruled the officer who pulled over defendant Kevin McKnight didn’t have probable cause to search his car without a warrant, largely because the drug-detection dog used wasn’t trained to differentiate between marijuana and other substances. Because of marijuana’s legal status under Colorado law, said the Supreme Court, McKnight had a reasonable expectation of privacy under the circumstances, and the officer’s search violated his state constitutional rights.
The court took up two questions in People v. McKnight: Is marijuana “contraband” for the purpose of a drug-detection dog’s sniff given its status as legal in some contexts under state law and illegal under federal law? And can an alert by a drug-detection dog that has not been trained to differentiate between marijuana and other controlled substances establish probable cause to justify searching a vehicle without a warrant?
“We hold that a sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under article II, section 7 of the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older,” wrote Justice William Hood for the majority. “We further hold that, in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff.”
McKnight’s attorney, public defender John Plimpton, argued marijuana’s legal status under Amendment 64 gives a person a reasonable expectation of privacy if a search has the possibility of turning up marijuana the person is possessing legally. Whether a person has a reasonable expectation of privacy is a factor used to determine whether a law enforcement action is a search.
Paul Koehler, who argued for the Colorado Department of Law, argued a drug dog’s sniff should not be considered a search subject to constitutional restrictions. Because Amendment 64 legalized a narrow scope of purchasing and using marijuana and illegal uses remain, he argued, a person should not have a reasonable expectation of privacy for possessing it legally.
The Supreme Court tussled over its decision, evidenced by three justices dissenting in two separate opinions. Chief Justice Nathan Coats penned a dissent that called the majority opinion a “selective and at times revisionist promenade through the history of both federal and state search and seizure law.” Coats disagreed with how the majority decided Colorado law interacts with federal law in the case.
He also objected to what he perceived from the majority a characterization that the court’s own prior decisions precluded the possibility a trained drug detection dog by itself can provide probable cause of the presence of contraband and by extension, probable cause of a crime committed.
Justice Carlos Samour wrote a separate dissent, joined by Justice Brian Boatright. Samour wrote he believes the majority made a misplaced reference to case law from Illinois. He wrote he believes the majority’s analysis skipped the question of whether a driver has a reasonable expectation of privacy in the odors that escape from his car and become part of the public airspace.
Samour also wrote he believes the ruling is more related to Fourth Amendment jurisprudence than the Colorado Constitution.
In 2015, Craig police officer Bryan Gonzales pulled over McKnight after seeing his vehicle parked for 15 minutes outside a house where law enforcement found illegal drugs during a raid several weeks earlier. Gonzales then used a drug-detection dog, Kilo, to search McKnight’s car. Kilo indicated he detected drugs. Officers searched the vehicle and found a pipe that had been used to smoke methamphetamine. The Moffat County District Court convicted McKnight on possession of paraphernalia and possession of a controlled substance.
McKnight asked for suppression of the evidence found as a result of Kilo’s signal and the officers’ subsequent search on the grounds that using Kilo constituted an unreasonable search under the state constitution and that Kilo’s indication did not establish probable cause for officers to search his vehicle. The district court denied the motion. The Court of Appeals agreed with McKnight, however, and overturned his conviction and sent the case back to district court.
Under Colorado law, said the Court of Appeals, a drug-detection dog’s indication that narcotics are present in a vehicle does not on its own establish probable cause for law enforcement to search the vehicle without permission if the occupant is over 21, if the dog has not been trained to differentiate between marijuana and illegal drugs. The Court of Appeals ruled in July 2017 the circumstances taken together didn’t establish probable cause for the officer to search McKnight’s car without a warrant. The court made clear its decision would only apply under Colorado law, since marijuana is still illegal federally.