Colorado Drug Sniffing Dogs And Probable Cause

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By: Bill Henry
PublishedJun 12, 2019
4 minute read

Drug sniffing dog and legal marijuana

A recent Colorado Supreme Court decision means state and local law enforcement officers can’t use a drug sniffing dog that detects pot to search your property if there’s no probable cause any laws have been broken.

In other words, if police pull you over they can’t use a drug sniffing dog to do an “exploratory sniff” on your vehicle based on a hunch. The officer must have factual evidence you have or will commit a crime before they can deploy a drug sniffing dog.

Let’s take a look at the case and what it means for you the next time police pull you over.

The Case: The Traffic Stop and a Drug Sniffing Dog

The ruling stems from the case of Kevin Keith McKnight. In 2015, McKnight was arrested following a traffic stop.

A police officer spotted McKnight’s truck parked the wrong way on a one-way street. As McKnight drove away, the officer pulled McKnight over because he failed to signal a turn.

The officer thought he recognized McKnight’s passenger as a local drug user. McKnight told police he didn’t have any narcotics.But police requested a drug sniffing dog.

The drug sniffing dog, Kilo, arrives at the scene. Kilo can sniff out marijuana, methamphetamine, cocaine, heroin, and ecstasy. The drug sniffing dog alerted to the truck’s driver door.

Drug Sniffing Dog Finds Pipe

Police did not find any drugs on McKnight or his passenger, but officers found a pipe in the truck after they combed through it. The pipe had a residue on it. Police suspected it was meth. So they took McKnight into custody.

Before trial, McKnight’s attorneys tried to have the pipe suppressed from evidence. The defense argued “that because marijuana is legal in Colorado and Kilo was trained to detect [it], Kilo’s sniff was a search that required particularized suspicion of criminal activity before [the dog] could be deployed, and there was no such suspicion on these facts.” (Justice Hood, Opinion of the Court, Supreme Court Case N. 17SC584)

Defense attorneys also argued that the K-9’s alert wasn’t cause for police to search the truck. It’s important to note that Kilo signals the same for marijuana as he does for meth, coke, heroin, and ecstasy.

The trial court concluded there was reasonable suspicion of criminal activity to support the search. It denied the motion to suppress the pipe.

A jury convicted McKnight of possessing a controlled substance and drug paraphernalia.

Justice Hood noted, “without explicitly stating as much, the trial court seemed to reason that a sniff by a dog trained to detect marijuana does not constitute a search.” (Opinion of the Court, Supreme Court Case N. 17SC584)

And that’s the crux of this case: whether Kilo’s sniff is really a search. 

The Sniff and Probable Cause

McKnight appealed his convictions to the Colorado Court of Appeals, and the appeals court asked two questions:

  1. Does deploying a drug sniffing dog trained to detect marijuana to sniff a legitimately stopped vehicle constitute a search?
  2. Since a drug sniffing dog can detect legal and illegal substances, does Kilo’s alert give police probable cause to search?

The appeals court judges agreed the pipe should have been suppressed. The court overturned McKnight’s convictions.

As for Kilo’s sniff, only two of the three judges directly addressed that issue. Judges John Dailey and Michael Berger concurred that the K-9’s sniff was, indeed, a search that required reasonable suspicion of a crime.

Two of the judges agreed that police did not have probable cause to search the truck.

The state wanted more clarity on the issue. It requested Colorado’s highest court to review the matter.

High Court Rules on Drug Sniffing Dog: The Sniff is a Search

The Colorado Supreme Court ruled Kilo’s sniff does, in fact, constitute a search under the state’s constitution.

The state’s high court said long-established law explains that people do not have a legitimate expectation of privacy when it comes to illegal drugs. Therefore, a K-9’s sniff would not constitute a search.

But these laws precede Colorado’s legalization of marijuana, which allows people 21 years old and older to possess an ounce of pot or less. Today, marijuana is not always “contraband” under state law.

The state’s highest court concluded that since Kilo’s sniff could detect lawful activity, it would be considered a search.

While delivering the court’s opinion, Justice William W. Hood III pointed out that Kilo can deliver a sort of “false positive for marijuana.”

“[The dog in this case] had been trained to alert to marijuana based on the notion that marijuana is always contraband, when that is no longer true under state law,” he said.

The Drug Sniffing Dog, Probable Cause, and Legal Pot

It’s long been held that if police lawfully stop you, and they have probable cause to believe a crime has occurred, they don’t need a warrant to search your car.

The U.S. Supreme Court says an individual should not expect to enjoy the same privacy in their car as they do in their home because of a car’s mobility and the extensive governmental regulation over them.

The nation’s highest court concluded that K-9 sniffs are nominally invasive techniques used only to inform about the presence of contraband.

National Ruling and Colorado Law

Since pot is legal in certain cases, these issues are called into question.

Justice Hood noted the 2012 legalization of marijuana under Amendment 64. It expands the state’s constitutional protections as it relates to someone’s reasonable expectation of privacy to lawfully possess marijuana.

He added that, “The dog’s sniff arguably intrudes on a person’s reasonable expectation of privacy in lawful activity.”

If that’s the case, Justice Hood said, “the intrusion must be justified by some degree of particularized suspicion of criminal activity.”

Since Kilo’s alerts do not distinguish between lawful marijuana and unlawful drugs, “Kilo’s sniff violated McKnight’s reasonable expectation of privacy,” Hood noted.

What the Colorado Ruling Means for You

The decision means police officers must have established probable cause to use drug sniffing dogs that can detect marijuana to search your property.

Police have used drug sniffing dogs to create probable cause to carry out a search.

What about a drug sniffing dog that does not alert to pot? Well, there are reports that police are currently training K-9s who do not detect marijuana. If that’s the case, it would seem they could use these drug sniffing dogs in a simple traffic search.

If you believe you’ve been part of an unreasonable search due to drug sniffing dog, give our office a call. Our defense attorneys are up to speed on the recent court decision and can discuss your next steps.

Robinson & Henry, P.C. offers initial assessments. Schedule online or call (303) 688-0944.

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