Scent Of Marijuana Does Not Constitute Probable Cause In Colorado

There are three judges on a panel of the Colorado Court of Appeals, in a somewhat complicated ruling, hold that bringing a trained drug dog to sniff a car requires reasonable suspicion (the same level of belief that a crime is committed necessary for a traffic stop) and that if the dog is trained to detect marijuana, which is legal in Colorado, that a dog alert is not sufficient to constitute probable cause.

¶ 1 Since 2012, it has not been a violation of Colorado law for people who are at least twenty-one years old to possess up to one ounce of marijuana for personal use. Colo. Const. art. XVIII, § 16(3)(a) (Amendment 64). To be clear, such possession is neither a criminal violation nor a civil violation.

¶ 2 This case presents two questions arising from our state’s marijuana laws and law enforcement’s use of dogs trained to detect marijuana and other controlled substances. First, does deploying a dog trained to detect marijuana to sniff a legitimately stopped vehicle constitute a “search” for purposes of the constitutional prohibitions of unreasonable searches? If so, law enforcement may not deploy such a dog without reasonable suspicion of criminal activity. Second, did the dog’s alert in this case give police probable cause to search Kevin Keith McKnight’s truck given that the dog was trained to alert if he detected either legal or illegal substances?

¶ 3 Two of us (Dailey and Berger, JJ.) agree with McKnight in answer to the first question, that is, that under our state constitution, the deployment of the dog here was a “search” requiring reasonable suspicion of criminal activity. And because the totality of the relevant circumstances did not give police 2 reasonable suspicion to conduct a dog sniff of his truck, we conclude that the district court erred in denying his motion to suppress evidence found in the truck.

¶ 4 But two of us (J. Jones and Berger, JJ.) would also agree with McKnight in answer to the second question, that is, that the dog’s alert, in combination with the other relevant circumstances, did not give the police probable cause to search his truck, and, for that reason, the district court erred in denying his motion to suppress evidence found in the truck. 

¶ 5 Because all of us agree that the court’s error in denying McKnight’s motion to suppress was not harmless beyond a reasonable doubt, we reverse the district court’s judgment of conviction and remand the case for further proceedings.

From here.

Judges Bailey and Berger are closer to agreement in substance than it appears, because the default rule under both state and federal law is that a dog sniff that detects only illegal contraband is not a search. Judges Bailey and Berger find that the dog sniff is a search because it can detect both legal and illegal substances now that marijuana is legal.

Judge Jones looks at the matter with a different analytical lens which causes her to reach a similar conclusion for similar reasons at the probable cause stage of the analysis, rather than at the stage of whether a dog sniff constitutes a search.

None of the Judges found that other circumstances present added to the totality of the circumstances sufficiently to provide probable cause or even reasonable suspicion to support a search (at paragraph 23 from the link to the Court's opinion above):

Here, the pertinent circumstances known to the police before the dog was called upon to sniff McKnight’s truck were that (1) McKnight had sat parked for fifteen minutes outside a house in which illegal drugs had been found seven weeks before and (2) McKnight had a passenger in the truck who had used methamphetamine “at some point in the past.” Those circumstances did not raise a reasonable suspicion that evidence of illegal activity would be found in McKnight’s truck. The officer observed no one approach the truck from the house or approach the house from the truck. The officer had no objective basis, then, for suspecting that the truck’s occupants had taken drugs into the truck from the house or from anywhere else for that matter.

For what it is worth, I'm inclined to agree with Judge Jones that the lack of probable cause for a search, even after the dog sniff, is a stronger argument that the lack of reasonable suspicion to conduct a dog sniff, if a dog sniff of the exterior of the vehicle even constituted a search.

Given the significant consequences of this ruling and the fractured support for the ruling, I wouldn't be surprised if the Colorado Supreme Court grants certiorari to more clearly set forth the law regarding these common place search and seizure issues that are likely to recur repeatedly in Colorado.

Since the rights litigated arise under Colorado's state constitution, the U.S. Supreme Court is very unlikely to provide any further review.

At a practical level, this ruling seriously discourages police from making random stops to look for drugs in people's cars using drug dogs or based upon the "smell of marijuana" in a car that is stopped.