2018 CO 84
Colo.2018Background
- State troopers encountered Edwin Bailey at a gas station; his out-of-state plates, repeated trips into the store, nervousness, inconsistent travel story, and strong odor of air fresheners drew suspicion.
- Troopers learned Bailey had a nonextraditable warrant, ownership/insurance was confirmed, and his car’s battery was dead, so he could not leave.
- Trooper Gosnell brought Mason, a certified narcotics dog trained to detect certain hard drugs (not marijuana). Gosnell performed two passes around the exterior; during the first pass Mason exhibited a behavioral "alert" (head snap, returned to front, changed breathing, went under the vehicle).
- Based on Mason’s behavior and other circumstances, Gosnell placed Mason inside the vehicle during the second pass; Mason later gave a final indication at the passenger front door seam.
- A subsequent hand search uncovered nearly 7 pounds of vacuum-sealed marijuana and other items; Bailey moved to suppress, arguing placing the dog inside the car was a warrantless search unsupported by probable cause.
- The trial court suppressed, finding Mason’s initial exterior alert was not a sufficient or “final” indication to establish probable cause. The People appealed to the Colorado Supreme Court.
Issues
| Issue | People’s Argument | Bailey’s Argument | Held |
|---|---|---|---|
| Whether placing Mason inside the car was a warrantless search supported by probable cause under the automobile exception | Troopers had probable cause based on the totality of circumstances including Mason’s exterior alert, allowing the search | The initial exterior behavior was not a final indication; placing Mason inside before a final alert was an unconstitutional search without probable cause | Reversed: the totality of circumstances, including Mason’s initial alert, supplied probable cause to place the dog in the car and search it |
Key Cases Cited
- Florida v. Harris, 568 U.S. 237 (probable cause assessed under totality of the circumstances; drug-dog alert can be probative)
- Texas v. Brown, 460 U.S. 730 (plurality) (probable cause standard explanation)
- Kentucky v. King, 563 U.S. 452 (warrant preference; warrantless searches presumptively unreasonable)
- Illinois v. Gates, 462 U.S. 213 (totality-of-the-circumstances approach to probable cause)
- United States v. Moore, 795 F.3d 1224 (10th Cir.) (a dog’s exterior alert, even if not a trained final indication, can establish probable cause to search a vehicle)