2019 CO 36
Colo.2019Background
- Police stopped Kevin McKnight's pickup after observing traffic/parking irregularities; a drug-detection dog (Kilo) was brought and alerted at the driver-side door.
- Kilo was trained to detect marijuana, methamphetamine, cocaine, heroin, and ecstasy, and gives the same alert for any of them.
- Officers conducted a warrantless hand search after the alert and found a pipe with methamphetamine residue; McKnight was convicted of drug possession and paraphernalia.
- McKnight moved to suppress, arguing the dog sniff (and subsequent search) violated the Colorado Constitution in light of Amendment 64 (legalizing possession of ≤1 ounce of marijuana by adults 21+); the trial court denied suppression.
- The court of appeals reversed; the Colorado Supreme Court granted certiorari and affirmed the court of appeals, holding that a dog sniff by a dog trained to detect marijuana is a search under article II, §7 and requires probable cause to deploy.
Issues
| Issue | Plaintiff's Argument (McKnight) | Defendant's Argument (People) | Held |
|---|---|---|---|
| Whether a dog sniff by a dog trained to detect marijuana is a "search" under the Colorado Constitution | Amendment 64 legalized small-quantity marijuana; because the dog can detect lawful possession, the sniff intrudes on a reasonable privacy expectation and is a search | Marijuana remains contraband under federal law and unlawful in many state contexts; a dog sniff detects contraband and thus is not a search | A dog sniff by a dog trained to detect marijuana is a search under Colorado Constitution article II, §7 because it can reveal lawful activity (possession of ≤1 ounce by adults 21+). |
| What level of suspicion justifies deploying such a dog to sniff a vehicle | Reasonable suspicion (analogizing to earlier Colorado cases that required reasonable suspicion for exploratory sniffs) | A dog alert—given federal contraband status and historical practice—can supply probable cause; no change required | Probable cause is required before deploying a dog trained to detect marijuana for an exploratory sniff. |
| Whether Kilo’s alert provided probable cause for the subsequent hand search of McKnight's truck | No—no probable cause existed to justify the sniff or the hand search given Amendment 64 and the facts | The alert (combined with facts) established probable cause | On these facts, there was no probable cause to deploy Kilo or to perform the hand search; suppression of the pipe was required. |
| Remedy for violation of article II, §7 | Suppression of the evidence as the fruit of an unconstitutional search | Prosecution did not press a contrary remedy on appeal | Court adopts exclusionary remedy for violations of article II, §7 and suppresses the pipe. |
Key Cases Cited
- United States v. Place, 462 U.S. 696 (U.S. 1983) (held a dog sniff of luggage was "sui generis" and could reveal only presence/absence of contraband)
- Illinois v. Caballes, 543 U.S. 405 (U.S. 2005) (dog sniff during lawful traffic stop did not constitute a Fourth Amendment search because it detected only contraband)
- Kyllo v. United States, 533 U.S. 27 (U.S. 2001) (use of sense-enhancing technology to reveal lawful, private activity inside a home is a search)
- Florida v. Jardines, 569 U.S. 1 (U.S. 2013) (police entry onto private property to use a drug-detection dog is a search when officers lack a right to be there)
- People v. Unruh, 713 P.2d 370 (Colo. 1986) (Colorado held a dog sniff of a locked safe was a search and required reasonable suspicion)
- People v. Esparza, 272 P.3d 367 (Colo. 2012) (narrowed prior Colorado dog-sniff precedent and aligned with federal approach when sniff reveals only contraband)
- People v. Zuniga, 372 P.3d 1052 (Colo. 2016) (acknowledged ambiguity of a dog alert to marijuana post-Amendment 64 but found probable cause based on totality of circumstances)
- People v. Cox, 401 P.3d 509 (Colo. 2017) (treated a dog alert as one factor in a totality-probable-cause analysis post-Amendment 64)
- Carroll v. United States, 267 U.S. 132 (U.S. 1925) (articulated the automobile exception to the warrant requirement)
- Katz v. United States, 389 U.S. 347 (U.S. 1967) (established the reasonable-expectation-of-privacy test for searches)
- Mendez v. People, 986 P.2d 275 (Colo. 1999) (probable cause requires a fair probability that evidence or contraband will be found; totality-of-circumstances approach)