People v. McKnight , 2017 COA 93 ( 2017 )

COLORADO COURT OF APPEALS 2017COA93
Court of Appeals No. 16CA0050
Moffat County District Court No. 15CR16
Honorable Michael Andrew O’Hara, III, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kevin Keith McKnight,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE DAILEY
Berger, J., specially concurs
J. Jones, J., specially concurs
Announced July 13, 2017
Cynthia H. Coffman, Attorney General, Paul Koehler, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, John B. Plimpton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶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
1
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.
I. Background
¶6 The police recovered a pipe containing white residue from
McKnight’s truck. The People charged him with possession of a
controlled substance (based on the residue) and possession of drug
paraphernalia. McKnight moved to suppress the evidence found in
his truck, arguing that law enforcement officers violated his
constitutional rights by conducting a dog sniff of his truck without
2
reasonable suspicion1 and by otherwise searching his truck without
probable cause.
¶7 At the suppression hearing, Officer Gonzales testified that he
saw a truck parked in an alley. The truck left the alley and
eventually parked outside of a house for about fifteen minutes.
This house, according to Officer Gonzales, had been the subject of a
search roughly seven weeks earlier that had turned up illegal drugs.
When the truck drove away, Officer Gonzales followed it, saw it turn
without signaling, and pulled it over.
¶8 McKnight was driving the truck. Officer Gonzales said he
recognized McKnight’s passenger from previous contacts with her,
“including drug contacts” involving the use of methamphetamine.
But when asked on cross-examination at what time, to his
knowledge, the passenger had last used methamphetamine, Officer
Gonzales declined to speculate about that and conceded that he
1 He argued that reasonable suspicion was necessary because the
dog sniff in and of itself was a “search” subject to state
constitutional protections; he did not argue (nor does he argue here)
that he was subjected to an unreasonably prolonged traffic stop.
See Rodriguez v. United States, 575 U.S. ___, ___, 135 S. Ct. 1609,
1614-15 (2015).
3
was “just aware that at some point in the past she had been known
to [him] as a user of methamphetamine.”
¶9 At Officer Gonzales’ request, Sergeant Folks came to the scene
with his certified drug-detection dog, Kilo. Kilo is trained to detect
cocaine, heroin, ecstasy, methamphetamine, and marijuana. He
indicates that he has detected the odor of one of these substances
by exhibiting certain behavior — barking, for example. His
indicative behavior, however, does not vary based on the particular
substance or amount of the substance he has detected.
¶ 10 When Sergeant Folks deployed Kilo to sniff McKnight’s truck,
Kilo displayed one of his trained indicators. Officers then told
McKnight and the passenger to get out of the truck, searched it,
and found a “glass pipe commonly used to smoke
methamphetamine.”
¶ 11 After the district court denied McKnight’s suppression motion,
the case proceeded to trial. A jury convicted McKnight of both
counts.
4
II. Discussion
A. Standard of Review
¶ 12 When reviewing a suppression order, we defer to the district
court’s factual findings as long as evidence supports them, but we
review de novo the court’s legal conclusions. Grassi v. People, 2014
CO 12, ¶ 11.
B. Was Kilo’s Sniff a Search?
¶ 13 The Federal and State Constitutions give people the right to be
free from unreasonable searches and seizures. U.S. Const. amend.
IV; Colo. Const. art. II, § 7; People v. Zuniga, 2016 CO 52, ¶ 14.
¶ 14 “Official conduct that does not ‘compromise any legitimate
interest in privacy’ is not a search subject to the Fourth
Amendment.” Illinois v. Caballes, 543 U.S. 405, 408 (2005) (quoting
United States v. Jacobsen, 466 U.S. 109, 123 (1984)). Any interest
in possessing contraband is not legitimate. Id. And so official
“conduct that only reveals the possession of contraband” does not
compromise any legitimate privacy interest. Id. Applying that
reasoning, the United States Supreme Court has held that
employing a well-trained drug-detection dog during a lawful traffic
stop does not implicate the Fourth Amendment because that is not
5
a search. Id. at 409-10. Likewise, our supreme court has held that
such a sniff is not a search under our state constitution. People v.
Esparza, 2012 CO 22, ¶ 6.
¶ 15 Indeed, in People v. Mason, 2013 CO 32, the supreme court
said:
It is now settled that walking a trained
narcotics detection dog around a car that has
not been unlawfully stopped or detained does
not implicate the protections of either the
Fourth Amendment or Article II, section 7 of
the state constitution.
Id. at ¶ 10.2
¶ 16 McKnight contends that a key premise underlying Caballes
and Esparza — that a dog sniff reveals only contraband — is not
2 In contrast, a government official’s walking a drug-detecting dog
around a residence would implicate Fourth Amendment
protections. See Florida v. Jardines, 569 U.S. ___, ___, 133 S. Ct.
1409, 1417-18 (2013) (house); United States v. Whitaker, 820 F.3d
849, 853-54 (7th Cir. 2016) (apartment). The difference is
attributable in large part to the different expectations of privacy
associated with a home and a car. See Jardines, 569 U.S. at ___,
133 S. Ct. at 1414 (“[W]hen it comes to the Fourth Amendment, the
home is the first among equals. At the Amendment’s ‘very core’
stands ‘the right of a man to retreat into his own home and there be
free from unreasonable governmental intrusion.’” (quoting
Silverman v. United States, 365 U.S. 505, 511 (1961))); id. at ___
n.1, 133 S. Ct. at 1419 n.1 (“[P]eople’s expectations of privacy are
much lower in their cars than in their homes.”) (Kagan, J.,
concurring).
6
true in this case. An alert from Kilo, he argues, is not so definitive:
it may reveal that a person possesses something legal (an ounce or
less of marijuana) or something illegal (illegal amounts of marijuana
or another controlled substance).
¶ 17 In neither Mason nor Esparza did the court address the effect
of Amendment 64, which changed the landscape upon which issues
of the type raised here are decided. For while possession of
marijuana by anyone in any amount remains a crime under federal
law, see 21 U.S.C. § 844(a) (2012), this is no longer the case under
state law. Because Amendment 64 legalized possession for
personal use of one ounce or less of marijuana by persons twenty-
one years of age or older in Colorado, it is no longer accurate to say,
at least as a matter of state law, that an alert by a dog which can
detect marijuana (but not specific amounts) can reveal only the
presence of “contraband.”3 A dog sniff could result in an alert with
respect to something for which, under Colorado law, a person has a
legitimate expectation of privacy, i.e., the possession of one ounce
or less of marijuana for personal use.
3No question has been raised in this case about whether
Amendment 64 is preempted by federal law.
7
¶ 18 Because a dog sniff of a vehicle could infringe upon a
legitimate expectation of privacy solely under state law, that dog
sniff should now be considered a “search” for purposes of article II
section 7 of the state constitution where the occupants are
twenty-one years or older. Cf. Kyllo v. United States, 533 U.S. 27,
34-40 (2001) (the use of a thermal imaging device to detect the
growth of marijuana in a home was a “search” under the Fourth
Amendment because the device was capable of detecting lawful
activity); see Curious Theatre Co. v. Colo. Dep’t of Pub. Health &
Env’t, 220 P.3d 544, 551 (Colo. 2009) (noting that local
circumstances may justify applying a provision in the state
constitution differently than a parallel provision in the Federal
Constitution); People v. Parks, 2015 COA 158, ¶ 21 n.3 (noting
instances where it was “decided that [a] governmental intrusion
constituted a search under the State Constitution even though it
did not constitute a search under the Federal Fourth
Amendment”).4
4 It would still not be considered a “search” under the Fourth
Amendment, though. No one could contend, for instance, that a
federal agent’s use of dog to sniff a car for the presence of any
amount of marijuana would constitute a “search” under the Federal
8
C. What Level of Justification Was Required for the Search?
¶ 19 Prior to Esparza, the supreme court had indicated that,
because of its minimally intrusive nature, a warrantless “search”
effected by a dog sniff had to be supported by “a reasonable
articulable suspicion that the item sniffed contains evidence of a
crime.” People v. Reyes, 956 P.2d 1254, 1256 n.1 (Colo. 1998),
abrogated by Esparza, 2012 CO 22; see also People v. Boylan, 854
P.2d 807, 811 (Colo. 1993) (“[A] dog-sniff search need be justified
not by probable cause sufficient to obtain a search warrant, but
instead by reasonable suspicion, similar to that required to stop
and frisk a person suspected of involvement in imminent criminal
activity.”), abrogated by Esparza, 2012 CO 22; People v. Unruh, 713
P.2d 370, 379 (Colo. 1986) (“[T]he balance between governmental
and individual interests in this case can best be struck by requiring
only reasonable suspicion as a prerequisite for the sniff search.”),
abrogated by Esparza, 2012 CO 22.
¶ 20 Based on this reasoning, we conclude that “reasonable
suspicion” is the state constitutional standard which applies to
Constitution. See Illinois v. Caballes, 543 U.S. 405, 409 (2005).
And Fourth Amendment protections do not change simply because
the actor using a drug-detecting dog changes.
9
searches effected by dog sniffs of the exterior of a vehicle. Thus, in
determining whether the police could subject McKnight’s truck to a
dog sniff, the question is whether, prior to the dog sniff, they had
grounds to reasonably suspect that evidence of illegal activity would
be found in the truck.
¶ 21 The reasonable suspicion standard requires “considerably less
than proof of wrongdoing by a preponderance of the evidence and is
less demanding even than the ‘fair probability’ standard for
probable cause.” People v. Polander, 41 P.3d 698, 703 (Colo. 2001)
(quoting Alabama v. White, 496 U.S. 325, 330 (1990)). It is satisfied
if “‘the police have specific and articulable facts, greater than a
mere hunch, to support’ their belief that the person to be stopped is
or may have been involved in criminal activity.” People v. Huynh,
98 P.3d 907, 912 (Colo. App. 2004) (quoting Boylan, 854 P.2d at
812).
¶ 22 “In considering whether reasonable suspicion exists, the court
looks at the totality of the circumstances, the specific and
articulable facts known to the officer at the time of the encounter,
and the rational inferences to be drawn from those facts.” People v.
Garcia, 251 P.3d 1152, 1158 (Colo. App. 2010).
10
¶ 23 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.
¶ 24 Because, in our view, the police lacked the requisite
reasonable suspicion to subject McKnight’s truck to a dog sniff, the
dog sniff was invalid, and the methamphetamine recovered as a
result thereof should have been suppressed. The People do not
contend, and we cannot conclude, that “the evidence properly
received against [McKnight was] so overwhelming that the
constitutional violation was harmless beyond a reasonable doubt.”
11
Bartley v. People, 817 P.2d 1029, 1034 (Colo. 1991). We must
reverse. See id.
III. Conclusion
¶ 25 The judgment of conviction is reversed, and the case is
remanded for further proceedings consistent with the views
expressed in this opinion.
JUDGE BERGER specially concurs.
JUDGE J. JONES specially concurs.
12
JUDGE BERGER, specially concurring.
¶ 26 I agree with the majority’s holding that there was no
reasonable suspicion supporting the dog sniff and that reasonable
suspicion was required because the dog was trained to alert both to
contraband and non-contraband.
¶ 27 I write separately for two reasons. First, while I do not think it
is necessary to reach the probable cause determination — the issue
upon which Judge Jones would decide this case — I agree with
Judge Jones’ conclusion that probable cause was absent (although
it is a very close question).
¶ 28 Second, I think it is useful to explain how a person may have
an enforceable expectation of privacy under state law while federal
law provides no such reasonable expectation.
¶ 29 The people of Colorado spoke clearly when they adopted
Amendment 64. It is the duty of Colorado courts to give effect to
that enactment. In re Great Outdoors Colo. Tr. Fund, 913 P.2d 533,
538 (Colo. 1996). The Attorney General does not contend that
Amendment 64 is displaced by the Supremacy Clause of the Federal
Constitution. Under these circumstances, it is incumbent on us to
apply Amendment 64. Doing so creates a dichotomy between the
13
reasonable expectations of privacy under state and federal law
because of the different laws enforced by state and federal law
enforcement officers.
¶ 30 The “general rule” is that state law does not preclude state and
local police from enforcing federal law. See, e.g., Miller v. United
States, 357 U.S. 301, 305 (1958); Johnson v. United States, 333
U.S. 10, 15 n.5 (1948); Gonzales v. City of Peoria, 722 F.2d 468,
474 (9th Cir. 1983), overruled on other grounds by Hodgers-Durgin v.
de la Vina, 199 F.3d 1037 (9th Cir. 1999). However, while state law
generally allows state and local law enforcement officers to enforce
federal law, it need not do so. “It has long been held that power
may be conferred upon a state officer, as such, to execute a duty
imposed under an act of Congress, and the officer may execute the
same, unless its execution is prohibited by the Constitution or
legislation of the state.” Dallemagne v. Moisan, 197 U.S. 169, 174
(1905).
¶ 31 Because Amendment 64 legalized possession of up to one
ounce of marijuana for personal use by persons twenty-one years of
age or older, it also “curtail[ed] police authority to enforce the
Federal prohibition of possession of [up to one ounce] of
14
marijuana.” Commonwealth v. Craan, 13 N.E.3d 569, 578 (Mass.
2014). Part of Amendment 64’s stated purpose was to increase “the
efficient use of law enforcement resources” and “individual
freedom.” Colo. Const. art. XVIII, § 16(1)(a). Allowing state and
local officers to continue to enforce the federal prohibition would
directly contravene this purpose. We must give effect to the voters’
intent, Bruce v. City of Colorado Springs, 129 P.3d 988, 992 (Colo.
2006), and we will not adopt an interpretation that contravenes the
purpose of Amendment 64.
¶ 32 Thus, while a person twenty-one years of age or older in
possession of less than an ounce of marijuana does not have a
reasonable expectation of privacy under federal law with respect to
law enforcement activities of federal officers, see Illinois v. Caballes,
543 U.S. 405, 408-09 (2005), he or she does have a reasonable
expectation of privacy under state law with respect to law
enforcement activities of state officers.
15
JUDGE J. JONES, specially concurring.
¶ 33 I concur in the result reached by the majority. But I do so
because it seems to me that the police officers lacked probable
cause to search McKnight’s truck.
¶ 34 Courts have recognized that an alert from a dog trained to
detect several substances, including marijuana, by itself may
amount to probable cause justifying a search of a vehicle. Florida v.
Harris, 568 U.S. 237, 246-47 (2013); People v. Esparza, 2012 CO
22, ¶ 12. But is that still true for purposes of article II, section 7 of
the Colorado Constitution, given that state law now generally allows
anyone who is at least twenty-one years old to possess small
amounts of marijuana for personal use? I consider that question,
which our supreme court did not address directly in People v.
Zuniga, 2016 CO 52, and People v. Cox, 2017 CO 8, and conclude
that such a dog’s alert alone no longer supplies probable cause
where the occupants of the vehicle are twenty-one years or older
and the officer conducting the search is not a federal officer.
¶ 35 In this case, a dog’s alert was the only circumstance of any
real weight giving rise to the police officers’ decision to search
McKnight’s truck. Therefore, I also conclude that the district court
16
erroneously denied McKnight’s motion to suppress the evidence
found during that search. And because that error was not
harmless beyond a reasonable doubt, I agree with the majority that
we must reverse the district court’s judgment of conviction and
remand the case for a new trial.
I. Was Kilo’s Sniff a Search?
¶ 36 As the majority points out, the United States Supreme Court,
in Illinois v. Caballes, 543 U.S. 405, 408-10 (2005), held that a
drug-detection dog’s sniff of a vehicle is not a search under the
Fourth Amendment, and the Colorado Supreme Court, in Esparza,
¶ 11, held that such a sniff is not a search under our state
constitution.
¶ 37 McKnight contends that a key premise underlying Caballes
and Esparza — that a dog sniff reveals only contraband — is not
true in this case. An alert from Kilo, he argues, is not so definitive:
it may reveal that a person possesses something legal (an ounce or
less of marijuana) or something illegal (illegal amounts of marijuana
or another controlled substance). But I need not decide whether
Kilo’s sniff constituted a search because, even if it did not, the
officers lacked probable cause to search McKnight’s truck.
17
II. Did Kilo’s Alert, By Itself, Create Probable Cause?
¶ 38 The Federal and State Constitutions give people the right to be
free from unreasonable searches and seizures. U.S. Const. amend.
IV; Colo. Const. art. II, § 7; Zuniga, ¶ 14. A warrantless search is
presumptively unreasonable, violating the Fourth Amendment
unless it falls under an exception to the warrant requirement.
People v. Vaughn, 2014 CO 71, ¶ 14. The automobile exception
allows police officers to search an automobile without a warrant if
they have probable cause to believe that it contains evidence of a
crime. Zuniga, ¶ 14.
¶ 39 “A police officer has probable cause to conduct a search when
‘the facts available to [the officer] would warrant a [person] of
reasonable caution in the belief’ that contraband or evidence of a
crime is present.” Harris, 568 U.S. at 243 (second alteration in
original) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)
(plurality opinion)). “[T]he information necessary to support a
finding of probable cause need not rise to the level of certainty.”
Mendez v. People, 986 P.2d 275, 280 (Colo. 1999). In the end,
“probable cause is a commonsense concept that requires judges to
consider the totality of the circumstances to determine ‘whether a
18
fair probability exists that a search of a particular place will reveal
contraband or evidence of a crime.’” Zuniga, ¶ 16 (quoting Mendez,
986 P.2d at 280).
¶ 40 In Zuniga, the Colorado Supreme Court applied the probable
cause standard under circumstances similar to those in this case.
A trooper searched the defendant’s vehicle after a drug-detection
dog — trained to detect marijuana and other controlled substances
— alerted to the vehicle. Id. at ¶ 6. Even though possessing
marijuana does not violate Colorado law under some
circumstances, the court concluded that the dog’s alert “suggested
that illegal drugs were present in the vehicle” and “contribut[ed] to
the existence of probable cause.” Id. at ¶ 29. And the court
ultimately concluded that the trooper had probable cause to search
the vehicle based on the dog’s alert, the two passengers’
“remarkably disparate accounts” of why they were in Colorado, the
passengers’ “extreme nervousness,” and the heavy odor of raw
marijuana. Id. at ¶¶ 26-30.
¶ 41 More recently, in Cox, the court reiterated that a dog’s alert is
part of the “totality of the circumstances” that the district court
must consider, and similarly concluded that four facts combined to
19
establish probable cause to search the defendant’s vehicle. Cox,
¶¶ 15, 17. These four facts were (1) an alert from a dog trained to
detect marijuana and other controlled substances; (2) the
defendant’s unusual nervousness; (3) inconsistencies in the
defendant’s description of his travels; and (4) the presence of two
cell phones in the defendant’s vehicle. Id. at ¶¶ 15-22.
¶ 42 Before Zuniga, both the United States Supreme Court and the
Colorado Supreme Court had recognized that an alert from a
reliable drug-detection dog by itself might establish probable cause.
See Harris, 568 U.S. at 246-47; Esparza, ¶ 12. In both Zuniga and
Cox, however, the supreme court expressly did not consider directly
whether, given the recent changes to marijuana’s status in
Colorado, an alert from a dog trained to detect marijuana and other
controlled substances by itself establishes probable cause to search
a vehicle. Cox, ¶ 22 n.5; Zuniga, ¶ 30 n.6. I conclude that, for
purposes of the Colorado Constitution, it does not.
¶ 43 Zuniga and Cox leave no doubt that Kilo’s alert supplied some
level of suspicion. “A possible innocent explanation or lawful
alternative may add a level of ambiguity to a fact’s probative value
in a probable cause determination, but it does not destroy the fact’s
20
usefulness outright and require it to be disregarded.” Zuniga, ¶ 20.
Because an alert from Kilo might be the product of legal or illegal
conduct, his alert added to the probability that a search would
reveal evidence of a crime. See id. at ¶ 29; see also Cox, ¶ 17.
¶ 44 But although Kilo’s alert increased the likelihood that
McKnight’s truck contained evidence of a crime, a significant level
of ambiguity arose from the combination of Kilo’s training and
Colorado’s marijuana laws. At bottom, Kilo’s alert communicated
only that he detected either a legal substance or an illegal
substance. That information would not, by itself, warrant a person
of reasonable caution to believe that McKnight’s truck contained
contraband or evidence of a crime. See Harris, 568 U.S. at 242-44;
State v. Shabeeb, 194 Wash. App. 1032, ¶ 20, 2016 WL 3264421, at
*3 (Wash. Ct. App. 2016) (unpublished opinion) (“The State
concedes and we agree that since the decriminalization of
marijuana, a K–9 alert standing alone no longer establishes
probable cause when the K–9 was trained to alert on multiple
narcotics, one of which is marijuana.”).
¶ 45 I am not persuaded by the People’s reliance on Mendez, in
which the supreme court determined that officers had probable
21
cause to search the defendant’s motel room after smelling burning
marijuana emanating from the room. 986 P.2d at 280. At the time,
medicinal use of marijuana provided an affirmative defense to a
possession charge under Colorado law. Id. at 281 n.4. Even so, the
court rejected the defendant’s argument that the smell of burning
marijuana did not create probable cause because the officers could
not determine whether the room’s occupant was using marijuana
illegally or medicinally. Id. In my view, legalizing marijuana (to
some degree) creates far more ambiguity as to whether possessing it
is probative of criminal conduct than does simply providing an
affirmative defense for its medicinal use.
¶ 46 For similar reasons, the cases from other states on which the
People rely carry little force. State v. Smalley, 225 P.3d 844, 847-48
(Or. Ct. App. 2010), was decided when possessing less than an
ounce of marijuana in Oregon, though not a criminal offense,
remained a “violation.” See also Bowling v. State, 134 A.3d 388,
394-98 (Md. Ct. Spec. App. 2016) (because possession of small
amounts of marijuana remains a civil violation, all marijuana is
contraband). And People v. Strasburg, 56 Cal. Rptr. 3d 306, 309
(Cal. Ct. App. 2007), was decided when California law permitted a
22
“qualified patient” to possess up to eight ounces of marijuana.
Neither Smalley nor Strasburg addressed the legal landscape that
we face in Colorado, where people who are at least twenty-one years
old may legally possess up to an ounce of marijuana for personal
use.
¶ 47 I recognize, as the People point out, that possessing any
amount of marijuana remains illegal under federal law. Coats v.
Dish Network, LLC, 2015 CO 44, ¶ 19. Nevertheless, I believe that,
at least for purposes of determining whether there is probable cause
under the Colorado Constitution, Zuniga makes clear that
Colorado’s marijuana laws have added a level of ambiguity to the
probative value of evidence suggesting that a person possesses
marijuana. See Zuniga, ¶¶ 20, 23. So I could not, consistent with
Zuniga, simply conclude that marijuana’s federal status clarifies the
ambiguity created by Kilo’s readiness to alert if he detects
marijuana.
¶ 48 For the foregoing reasons, I conclude that a drug-detection
dog’s alert does not alone give a Colorado state law enforcement
23
officer probable cause to conduct a search of a vehicle where the
occupants are at least twenty-one years old.1
III. Did the Totality of the Circumstances
Establish Probable Cause for the Search?
¶ 49 Though Kilo’s alert did not alone give probable cause for the
search of McKnight’s truck, it was of course indicative of possible
criminal activity. Id. at ¶ 29. So the question remains whether the
totality of the circumstances, including Kilo’s alert, established
probable cause for the search. See id. at ¶ 16.
¶ 50 The People rely on only two additional facts to support a
finding of probable cause — that McKnight parked outside a house
in which drugs had been found and that Officer Gonzales knew that
McKnight’s passenger had used methamphetamine “at some point
in the past.” A close look shows that these facts are too vague and
attenuated to have suggested that McKnight’s truck contained
evidence of criminal activity.
1 The result would be different if the dog was not trained to detect
marijuana, or if the vehicle’s occupants were not at least twenty-one
years old. And I do not opine as to whether the change in
Colorado’s marijuana laws affects the Fourth Amendment analysis;
like the majority, my analysis is limited to the Colorado
Constitution.
24
¶ 51 That illegal drugs (the motions hearing transcript is silent as
to what kind or how much) had been found in the house more than
seven weeks earlier says little, if anything, about whether it
contained illegal drugs when McKnight parked nearby. Moreover,
Officer Gonzales did not say that anyone in McKnight’s truck
approached the house or that anyone from inside the house
approached McKnight’s truck. McKnight’s mere parking by a house
that had once contained illegal drugs simply did not suggest that
McKnight’s truck had illegal drugs in it. See People v. Revoal, 2012
CO 8, ¶ 16 (“standing alone, a history of past criminal activity in a
locality does not justify suspension of the constitutional rights of
everyone, or anyone, who may subsequently be in that locality”).
¶ 52 Similarly unsuspicious is that McKnight’s passenger had used
methamphetamine sometime in the past. For all we know, the
passenger may have been clean for years before Officer Gonzales
saw her in McKnight’s truck. In any case, the information that
Officer Gonzales conveyed about the passenger’s past drug use did
not suggest that the passenger or McKnight had illegal drugs when
Officer Gonzales stopped them. Cf. United States v. Kennedy, 427
F.3d 1136, 1142 (8th Cir. 2005) (“information of an unknown and
25
undetermined vintage relaying the location of mobile, easily
concealed, readily consumable, and highly incriminating narcotics
could quickly go stale in the absence of information indicating an
ongoing and continuing narcotics operation”).
¶ 53 I am aware that I must consider these facts together with
Kilo’s alert in assessing whether there was probable cause. Cox,
¶ 14. But after doing so I am simply not convinced that there was
probable cause. In my view, the additional facts do nothing to clear
up the ambiguity arising from Kilo’s alert.
¶ 54 In sum, I conclude that the information available to the
officers who searched McKnight’s truck did not give them probable
cause to believe that it contained evidence of a crime. For that
reason, the district court erred when it denied McKnight’s motion to
suppress the evidence obtained from the search. See id. The
People do not contend, and I cannot conclude, that “the evidence
properly received against [McKnight was] so overwhelming that the
constitutional violation was harmless beyond a reasonable doubt.”
Bartley v. People, 817 P.2d 1029, 1034 (Colo. 1991). Therefore, I
agree with the majority that we must reverse. See id.
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