v. Gadberry , 440 P.3d 449 ( 2019 )

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ADVANCE SHEET HEADNOTE
May 20, 2019
2019 CO 37
No. 18SA208, People v. Gadberry—Searches and Seizures—Drug-Detection Dog—
Probable Cause.
At issue in this interlocutory appeal is whether law enforcement needed probable
cause before deploying a drug-detection dog that was trained to alert to both marijuana
and other substances. Adopting the analytical framework announced today in the
companion case, People v. McKnight, 2019 CO 36, __ P.3d __, the supreme court holds that
the officers needed probable cause before deploying such a drug-detection dog, and a
defendant’s statements regarding the presence or non-presence of marijuana does not
change this. Because the officers did not have probable cause, the drug-detection dog
never should have been deployed. Accordingly, we affirm the trial court’s suppression
order.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 37
Supreme Court Case No. 18SA208
Interlocutory Appeal from the District Court
Mesa County District Court Case No. 17CR2426
Honorable Valerie J. Robison, Judge
______________________________________________________________________________
Plaintiff-Appellant:
People of the State of Colorado,
v.
Defendant-Appellee:
Amanda Eileen Gadberry.
______________________________________________________________________________
Order Affirmed
en banc
May 20, 2019
______________________________________________________________________________
Attorneys for Plaintiff-Appellant:
Daniel P. Rubinstein, District Attorney, Twenty-First Judicial District
Brian Conklin, Deputy District Attorney
Grand Junction, Colorado
Attorneys for Defendant-Appellee:
Megan Ring, Public Defender
Kristin Westerhorstmann, Deputy Public Defender
Grand Junction, Colorado
JUSTICE HOOD delivered the Opinion of the Court.
CHIEF JUSTICE COATS dissents, and JUSTICE BOATRIGHT and JUSTICE
SAMOUR join in the dissent.
JUSTICE SAMOUR dissents, and JUSTICE BOATRIGHT joins in the dissent.
¶1 Marijuana isn’t meth. But drug-detection dog Talu can’t tell the difference. So
when Talu alerted to the driver and passenger side doors of Amanda Gadberry’s truck,
the officers didn’t know whether Talu had found marijuana, which is legal in some
circumstances in Colorado, or meth, which never is. This quandary led us in People v.
McKnight, a companion case also announced today, to hold that persons twenty-one years
of age or older have a reasonable expectation of privacy in the possession of one ounce
or less of marijuana in Colorado, therefore requiring officers to have probable cause that
an item or area contains a drug in violation of state law before they deploy a dog trained
to alert to marijuana. See 2019 CO 36, ¶ 7, __ P.3d __. We see no difference between
Gadberry’s situation and McKnight’s. Thus, Talu’s wide-ranging, though outdated,
training demanded probable cause before the drug-detection dog’s deployment, just as it
did in McKnight.
¶2 In this interlocutory appeal, we therefore hold that the officers needed probable
cause to deploy Talu. They didn’t have it. Accordingly, we affirm the trial court’s
suppression order.
I. Facts and Procedural History
¶3 While patrolling Mesa County, Deputy Stuckenschneider observed a black Dodge
pickup driving with a missing front license plate. Stuckenschneider phoned Deputy
Briggs, alerting her to the situation. But this wasn’t just any vehicle with a missing front
plate—a few days prior, Sergeant Beagley had stopped the same car for being incorrectly
registered and for displaying invalid license plates. Briggs knew all of this when she
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received the alert from Stuckenschneider. With knowledge of the previous stop and
Stuckenschneider’s observation regarding the front plate, Briggs pulled the Dodge over.
In the driver’s seat, she found Gadberry.
¶4 Briggs informed Gadberry that she initiated the stop because of the missing front
plate. Gadberry told Briggs that the car indeed had a front plate and, upon inspection,
Briggs found the missing plate shoved into the grill of the Dodge, although the car was
still improperly registered. While all of this was happening, Beagley, Handler Cheryl
Yaws, and dog Talu, who is trained to alert to methamphetamine, cocaine, heroin, and
marijuana, arrived on the scene. During the time that it took Briggs to run Gadberry’s
plates, Beagley asked Gadberry if there was any marijuana in the vehicle. She said no.
¶5 Shortly thereafter, Talu sniffed around the car and alerted to the driver and
passenger doors. With the benefit of that alert, the officers conducted a search of the car,
finding a cellophane wrapper of methamphetamine lodged inside a wallet. Gadberry
was then charged with (1) display of a fictitious license plate, (2) possession of drug
paraphernalia, and (3) possession of a controlled substance.
¶6 Gadberry moved to suppress the evidence on four grounds: (1) Briggs didn’t have
reasonable suspicion to initiate the stop; (2) the stop was unreasonably prolonged;
(3) Talu’s sniff was unlawful because Talu was trained to alert on both marijuana, a legal
substance, and illegal substances, such as methamphetamine; and (4) Talu’s sniff was
unreliable. The trial court denied claims one and two. It held that the “fellow officer
rule” imputed Stuckenschneider’s knowledge of the missing front plate and improper
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registration to Briggs, therefore justifying the stop. Additionally, it found that the stop
only lasted long enough for Briggs to obtain information, view the vehicle, and run the
plates. As a result, the court concluded that the officers didn’t unreasonably delay
Gadberry.
¶7 The trial court did, however, grant Gadberry’s motion to suppress based on claim
three. It followed the court of appeals’ decision in People v. McKnight, 2017 COA 93,
__ P.3d __, and found that a sniff is a search when a drug-detection dog can alert to both
illegal and legal substances. Here, no one presented any evidence suggesting that the
vehicle had any illegal substances in it or that Gadberry was aware of all the belongings
in the car, especially since multiple people had driven the car in the few days before the
stop. Therefore, the trial court reasoned that, under McKnight, the officers on the scene
needed reasonable suspicion that Gadberry had been involved in criminal activity to
initiate Talu’s sniff. Because the officers here lacked reasonable suspicion to deploy Talu,
the court granted the motion to suppress and didn’t reach claim four.
¶8 The People filed the interlocutory appeal at issue here, raising the following
question: Did the trial court err in finding that a free air sniff of the Defendant’s vehicle
by a dog trained in marijuana and illegal narcotics was a search, which required a
showing of reasonable suspicion?
II. Analysis
¶9 We start with the standard of review and a quick synopsis of relevant search and
seizure caselaw. As we hold today in McKnight, article II, section 7 of the Colorado
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Constitution provides persons twenty-one years of age or older with a reasonable
expectation of privacy in the lawful activity of possessing an ounce or less of marijuana,
therefore necessitating probable cause that an item or area contains a drug in violation of
state law before officers deploy dogs trained to alert to marijuana. See McKnight, ¶ 7.
Gadberry is such an individual—regardless of her statements about the contents of the
vehicle—and, therefore, the officers needed probable cause that the vehicle contained a
drug in violation of state law before they conducted an exploratory sniff. Because there
was no such probable cause here, the officers impermissibly deployed Talu.
A. Standard of Review
¶10 For suppression orders, we review legal conclusions de novo but defer to factual
findings that have record support. See People v. Gutierrez, 222 P.3d 925, 931–32 (Colo.
2009). Thus, we review the constitutionality of the sniff de novo.
B. The Officers Needed Probable Cause to Deploy Talu
¶11 The narrow question before us is only whether Talu’s sniff required probable
cause. The validity of the investigatory stop is not at issue. Here, where the
drug-detection dog was trained to alert to marijuana, the officers needed probable cause
that the vehicle contained a drug in violation of state law before conducting the
exploratory sniff. See McKnight, ¶ 7.
¶12 Both the U.S. Constitution and the Colorado Constitution protect against
unreasonable searches and seizures. See U.S. Const. amend. IV (“The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches
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and seizures, shall not be violated . . . .”); Colo. Const. art. II, § 7 (“The people shall be
secure in their persons, papers, homes and effects, from unreasonable searches and
seizures . . . .”). As a result, when a person has a reasonable expectation of privacy, the
prohibition on unreasonable searches and seizures protects a citizen from governmental
intrusion. See Kyllo v. United States, 533 U.S. 27, 33 (2001); Katz v. United States, 389 U.S.
347, 361 (1967) (Harlan, J., concurring).
¶13 The yardstick, however, is that there must be a reasonable expectation of privacy.
And both the Supreme Court and this court have held that there is no reasonable
expectation of privacy in contraband. See Illinois v. Caballes, 543 U.S. 405, 408–09 (2005);
People v. Esparza, 2012 CO 22, ¶ 11, 272 P.3d 367, 370. Accordingly, a sniff, which typically
“does not expose noncontraband items that otherwise would remain hidden from public
view,” during an otherwise legal stop isn’t an unreasonable search prohibited by either
the federal or state constitution. Caballes, 543 U.S. at 409 (quoting United States v. Place,
462 U.S. 696, 707 (1983)); accord Esparza, ¶ 11, 272 P.3d at 370.
¶14 In the companion case, we hold that this isn’t always the case. See McKnight, ¶ 7.
There, a dog trained to alert to both marijuana and state-banned substances alerted to
methamphetamine in a vehicle. Id. at ¶¶ 12–14. These facts bear an uncanny resemblance
to our current case. The People, however, argue that there is a crucial
difference: McKnight never stated that there wasn’t any marijuana in the car. But we fail
to see the relevance of that fact. An expectation of privacy doesn’t disappear once a
citizen states that certain items aren’t in the car or on their person. Talu might still alert
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to marijuana, regardless of Gadberry’s statements, and it’s this potential to reveal lawful
activity that renders Talu’s sniff suspect.
¶15 Consider whether Gadberry uttering that there is “nothing” in the car versus there
isn’t any “marijuana” in the car should yield any doctrinal difference. If Gadberry states
that there’s nothing in the car, or says nothing, Talu still might still alert to legal activity—
the possession of one ounce or less of marijuana. That’s why we held in McKnight that
probable cause is required. McKnight, ¶¶ 54–55. It’s only once someone discloses the
presence of contraband, rather than withholding disclosure, that an expectation of
privacy is lost. See, e.g., People v. Carper, 876 P.2d 582, 584–85 (Colo. 1994) (holding that
the defendant didn’t have a subjective expectation of privacy in the contents of his shirt
pocket after disclosing the presence of cocaine in the pocket to police officers). Thus,
when someone says that there is “nothing” in the car, that might assert that person’s
privacy interest by refusing to disclose the presence of something in which the person
has a reasonable expectation of privacy.
¶16 That Gadberry stated that there wasn’t any marijuana in the car, rather than
“nothing,” doesn’t change this analysis. Gadberry still refused to disclose the presence
of marijuana, thereby asserting her privacy interest in lawful activity. And regardless of
any such assertion, Talu is still able to detect lawful activity, and the sniff “can no longer
be said to detect ‘only’ contraband.” McKnight, ¶ 43. Gadberry’s statements do nothing
to help the officers parse out whether the alert was for meth or marijuana: Talu doesn’t
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have a mastery of the English language and still gives the same alert for all trained
substances. In other words, Gadberry’s declarations are gobbledygook to Talu.
¶17 There also exists a practical problem with following the People’s analysis. If we
were to hold that disclosing the lack of marijuana to an officer results in permission to
sniff a car, we would be urging drivers to always assert that there is marijuana in the
vehicle. We would thus be encouraging citizens to lie to the police so that they may
maintain their constitutional rights. No source of law compels that absurdity.
¶18 Therefore, the officers needed probable cause that the vehicle contained illegal
narcotics before they deployed Talu.
C. The Officers Lacked Probable Cause to Deploy Talu
¶19 The only information that any of the several officers involved in the stop had
was: (1) the Dodge had been stopped a few days prior and had improper registration and
(2) the vehicle was, apparently, missing a front plate. While these two facts might have
been enough to initiate the stop, they certainly didn’t “warrant a [person] of reasonable
caution in the belief” that a drug in violation of state law was present in the vehicle.
McKnight, ¶ 51 (alteration in original) (citing People v. Zuniga, 2016 CO 52, ¶ 16, 372 P.3d
1052, 1057). Indeed, there is nothing in the record that suggests any illegal narcotic
involvement at all, previously or at the time of the stop. As a result, the officers didn’t
have probable cause and shouldn’t have deployed Talu.
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III. Conclusion
¶20 Gadberry’s declaration that her Dodge contained no marijuana didn’t strip her of
her constitutional rights. We therefore hold that the officers needed probable cause
before deploying Talu and that such cause wasn’t present here. Accordingly, we affirm
the trial court’s suppression order.
CHIEF JUSTICE COATS dissents, and JUSTICE BOATRIGHT and JUSTICE
SAMOUR join in the dissent.
JUSTICE SAMOUR dissents, and JUSTICE BOATRIGHT joins in the dissent.
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CHIEF JUSTICE COATS, dissenting.
¶21 For the reasons articulated in my dissenting opinion in People v. McKnight, 2019
CO 36, __ P.3d __, also reported by the court today, I would reverse the trial court’s
suppression order.
¶22 I therefore respectfully dissent.
I am authorized to state that JUSTICE BOATRIGHT and JUSTICE SAMOUR join
in this dissent.
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JUSTICE SAMOUR, dissenting.
¶23 I respectfully dissent. For the reasons articulated in my dissenting opinion in the
companion case of People v. McKnight, 2019 CO 36, __ P.3d __, including my agreement
with the Chief Justice’s dissenting opinion in that case, I would reverse the trial court’s
suppression order.
I am authorized to state that JUSTICE BOATRIGHT joins in this dissent.
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