The Colorado Court of Appeals recently issued a ruling in a traffic-stop case from Craig, that puts a muzzle on the use of drug-sniffing police dogs statewide.
The court threw out evidence found in Kevin McKnight's truck by Craig Police Cpl. Bryan Gonzales after Kilo, a Moffat County Sheriff's Department drug detection dog was brought to the scene and alerted, indicating the presence of one of several possible contraband drugs he had been trained to detect.
The court ruled that a glass pipe "commonly used to smoke methamphetamine" and the residue of meth in it must be suppressed because "a dog sniff of a vehicle could infringe upon a legitimate expectation of privacy solely under state law..." (Emphasis in the original)
Thanks to the legalization of recreational marijuana by Amendment 64, every drug detection police dog in Colorado has just become far less useful.
If the dog is trained to detect marijuana, no longer will the dog's alerting constitute either reasonable suspicion or probable cause for a further search by police. Because the dog could be detecting something that is now legal under state law and because it cannot tell the handler which drug it has detected or how much of it there is, the sniff now constitutes a search under Colorado law that involves more stringent probable cause requirements.
Previous courts, including the United States Supreme Court have ruled that there is no reasonable expectation of privacy in the possession of illegal drugs or the airborne molecules they exude, so having a dog sniff for those molecules in the air outside the vehicle did not impact any Fourth Amendment privacy rights.
So as long as the traffic stop was otherwise legal (in this case failing to signal a turn), a dog-sniff required only a reasonable suspicion that there is contraband in the vehicle. "The police [must] 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," wrote the court. Once that standard was met however, a full search could be predicated on a drug-dog alerting on the vehicle, which established probable cause for a warrantless search under the vehicle exception to the requirement for a search warrant.
That is no longer the case. Now officers will have to obtain probable cause to search without using a drug-sniffing dog.
The court noted that protection against such a search applies only if the occupants of the vehicle are over the age of 21. Because it is still illegal for persons under that age to possess any amount of marijuana, dogs can still be used.
But while the court mentioned minors it did not address the obvious issue of mixed use of a vehicle by both adults and minors where an adult, who is permitted to possess marijuana, may have been using the car and inadvertently left sufficient residue in the vehicle to cause a drug dog to alert, which would seem to violate the rights of the minors innocently in technical possession of marijuana residue.
It's a conundrum that the courts will inevitably have to resolve in the future.
For now Colorado's legalization of marijuana has created a serious impediment to the use of drug-detection dogs to stop trafficking in other drugs like meth, cocaine, heroin and ecstasy. It's questionable whether dogs can be retrained not to alert on marijuana, although experts will have to see if retraining away from marijuana odors is reliable.
Until that happens any vehicle that is stopped is functionally immune from a dog-sniff screening if the officer doesn't already have probable cause that there is contraband in the vehicle. This is true even if what is being transported is large amounts of illegal marijuana.
It's a devastating blow to efforts to curtail drug trafficking. Retraining or replacing dogs trained to detect marijuana could well be out of reach for many departments.
This may require the state to intervene and subsidize such retraining or replacement in order to maintain law enforcement's ability to do its job.
This is yet another example of the unintended consequence and public burden of recreational marijuana legalization.
Readers can contact Scott Weiser at firstname.lastname@example.org.