Court: Scent not enough for car search
Because pot is legal in state, smell doesn’t constitute cause
The indication by a drug-sniffing police dog to the presence of controlled substances in a vehicle by itself is not enough to constitute probable cause for police to search that vehicle, the Colorado Court of Appeals ruled Thursday.
In a precedent-setting case involving a Moffat County resident, a three-judge panel agreed that a police officer needs more cause to search a vehicle without permission from its owner.
That’s because it could be legal marijuana, the court ruled.
“Because Amendment 64 legalized possession for personal use of one ounce or less of marijuana by persons 21 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,’” Judge Daniel Dailey wrote in the ruling, which was joined by Judges Michael Berger and Jerry Jones.
“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,” the court added. “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 (the amendment) where the occupants are 21 years or older.”
In this February 2015 case, Craig Police Cpl. Bryan Gonzales had followed a truck driven by Craig resident Kevin McKnight that was leaving a home that had been searched for drugs nearly two months earlier.
Gonzales testified that he pulled the truck over because McKnight allegedly made a turn without using a turn signal. He later called in Sgt. Courtland Folks with the Moffat County Sheriff’s Office and his drug-detection dog, Kilo.
Kilo is trained to detect cocaine, heroin, esctasy, methamphetamine and marijuana.
After Kilo detected something in the vehicle, it was searched by police, revealing a glass pipe commonly used to smoke meth.
Despite a motion by McKnight’s attorney to suppress that search, Moffat County District Judge Michael O’Hara allowed evidence found from it. McKnight, 48 at the time, was later convicted of possession of drug paraphernalia and possession of a controlled substance.
But the appeals court said that because some amounts of marijuana are legal, and the dog could not tell officers what he was sniffing, the officers did not have enough probable cause to conduct the search.
Both Berger and Jones wrote separate concurring opinions in the case.
While Berger said Amendment 64 gave Coloradans “an enforceable expectation of privacy,” Jones said the amendment has “added a level of ambiguity” when it comes to police trying to gather evidence in drug cases.