2017 COA 93
Colo. Ct. App.2017Background
- Officer Gonzales stopped Kevin McKnight after observing a turn without signaling; McKnight had parked ~15 minutes outside a house where drugs had been found 7 weeks earlier.
- The passenger was known to Officer Gonzales from prior contacts and had used methamphetamine "at some point in the past."
- Sergeant Folks brought his certified drug-detection dog Kilo, trained to detect cocaine, heroin, ecstasy, methamphetamine, and marijuana; Kilo alerts but does not identify which substance.
- Kilo alerted on McKnight’s truck; officers then searched the truck and found a glass pipe with white residue; McKnight was convicted of possession of a controlled substance and paraphernalia.
- McKnight moved to suppress, arguing the dog sniff was a search under the Colorado Constitution requiring reasonable suspicion and that the subsequent search lacked probable cause; the district court denied suppression, conviction followed, and the Court of Appeals reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deploying a dog to sniff a lawfully stopped vehicle is a "search" under the Colorado Constitution | Dog sniffs of vehicles are not searches (Caballes/Esparza); no heightened protection | Because Colorado legalized possession of ≤1 ounce by adults, a dog that alerts to marijuana may detect lawful possession and thus implicate state privacy rights | The dog sniff is a search under Colo. Const. art. II, § 7 when occupants are ≥21 and the dog can detect marijuana; reasonable suspicion required |
| What level of justification is required for a canine sniff of a vehicle under the Colorado Constitution | Probable cause or federal standard (no change) | Reasonable suspicion suffices because a sniff is minimally intrusive | Reasonable suspicion is the appropriate standard for a dog-sniff search of a vehicle under the state constitution |
| Whether officers had reasonable suspicion to deploy the dog here | Facts (parking near a previously searched house; passenger with past meth use) created suspicion | The facts were sufficient to justify the sniff | Officers lacked reasonable suspicion to conduct the dog sniff; sniff was invalid and evidence should be suppressed |
| Whether Kilo’s alert (and totality of circumstances) provided probable cause to search the vehicle | A certified dog’s alert can supply probable cause (Harris, Zuniga, Cox) | Because Kilo alerts to marijuana (which can be lawfully possessed) and other drugs, the alert alone is ambiguous; coupled facts here were too weak | All concur that the search lacked sufficient justification; at least two judges held the alert plus circumstances did not establish probable cause; conviction reversed |
Key Cases Cited
- Illinois v. Caballes, 543 U.S. 405 (drug-dog sniff during lawful stop that only reveals contraband is not a Fourth Amendment search)
- Florida v. Harris, 568 U.S. 237 (properly trained dog’s alert can contribute to probable cause)
- Kyllo v. United States, 533 U.S. 27 (use of technology to detect lawful vs unlawful activity in the home can be a search under the Fourth Amendment)
- Mendez v. People, 986 P.2d 275 (probable cause commonsense/totality test applied to smell of marijuana)
- Bartley v. People, 817 P.2d 1029 (harmless-error standard for constitutional violation)