372 P.3d 1052 | Colo. | 2016
Lead Opinion
delivered the Opinion of the Court.
1 In this interlocutory appeal of the trial court's order suppressing evidence obtained as a result of a vehicle search, we consider whether the odor of marijuana can contribute to a finding of probable cause even though, since 2012, possession of one ounce or less of marijuana is allowed under Colorado law. We hold that the odor of marijuana is relevant to the totality of the cirenmstances test and can contribute to a probable cause determination. Therefore, the trial court erred when it disregarded the odor of marijuana in its probable cause analysis, Under the facts of this case, we conclude that there was probable cause to search the vehicle for illegal drugs in light of the two occupants' divergent stories about their time in Colorado, their "extreme" nervousness, the strong odor of raw marijuana, and a K-9 unit's alert at the rear of the vehicle, We therefore reverse the trial court's order suppressing evidence obtained from the search and remand for proceedings consistent with this opinion.
I. Facts and Procedural History
12 A Colorado State Trooper on patrol along Interstate 76 in Weld County stopped a Jeep Cherokee with Towa license plates that was heading eastbound.
'I 3 During the ensuing interview, the driver explained that the vehicle was 'his even though it was registered in his mother's name. As the conversation progressed, the Trooper again noted that the driver was "overly nervous" and would not look the Trooper in the eye, opting instead to look at the surroundings of the traffic stop. The Trooper asked the driver why the two were in Colorado, to which the driver responded that they drove out approximately four days earlier but "didn't go anywhere and didn't do anything" once there. The Trooper testified that he found this suspicious because people normally have "some kind of reason, whether it's business or pleasure," for visiting another city or state. The driver also indicated that they stayed at-a hotel in the Denver area, but he could not recall the name of the hotel.
T4 The Trooper then moved to Zuniga, who was still sitting in the passenger side of the vehicle, and asked him why the two had visited Colorado. Zuniga responded that they drove out approximately two days earlier to visit his grandmother, who was in the hospital due to kidney problems. Zuniga also told the Trooper that he and the driver spent the rest of their time visiting the mountains and walking along the Sixteenth Street Mall in Denver, Zuniga said that they stayed at his grandmother's home after she was released from the hospital, but he could not remember specifically where his grandmother lived in the Denver area. The Trooper testified that during this brief conversation, Zuniga took several moments before responding to each question.
¶ 5 Based upon the men's inconsistent stories, their extreme nervousness, and the strong odor of raw marijuana, the Trooper was suspicious that criminal activity was ongoing in the vehicle, Accordingly, the Trooper told the two men that he was going to have his K-9 unit, Lobo, conduct a "free air sniff" around the vehicle. Lobo is trained to detect four different narcotic odors-marijuana, cocaine, methamphetamine, and heroin-but his alert to the presence of a narcotic is "general," meaning he is unable to indicate to his handler which particular nar-eotic he detects. In addition, Lobo is unable to differentiate between different weights or amounts of narcoties, and thus he alerts any time he detects a scent of any of the four nareoties, regardless of the amount.
T6 Lobo quickly alerted at the rear hatch of the Jeep Cherokee. As a result, the Trooper lifted the rear hatch door and found a large duffel bag, which the driver identified as Zuniga's. The Trooper opened the duffel bag and found approximately one pound of marijuana wrapped in plastic inside, The Trooper then turned his attention to an ice cooler next to the duffel bag, Upon opening the cooler, the Trooper immediately smelled a strong odor of raw marijuana and subsequently found 12.6 ounces of marijuana concentrate
17 The Trooper called Zuniga over and asked him if the martjuana in the duffel bag and the marijuana concentrate in the cooler were his, to which Zuniga responded, "Yes, gir." The Trooper arrested Zuniga, and the People charged him -with two counts of possession with intent to manufacture or distribute marijuana or marijuana concentrate, both level <- three drug felonies. § 18-18-406(2)(b)(I), (IIT)(C), C.R.8. (2015).
18 After he pleaded not guilty, Zuniga filed a motion to suppress, arguing that the seized marijuana was the fruit of an illegal detention and search. In particular, Zuniga argued that (1) the Trooper lacked reasonable suspicion to stop the vehicle in the first place, (2) the prolonged detention of Zuniga was unlawful, and (8) the vehicle search was not supported by probable cause. After hearing the Trooper's testimony and argument from both parties, the trial court rejected Zuniga's first two arguments but agreed with him that the Trooper lacked probable cause to search the vehicle. The trial court therefore granted Zuniga's motion to suppress.
{10 This interlocutory appeal followed. See § 16-12-102(2), C.R.S. (2015); C.A.R, 4.1,
II. Interlocutory Jurisdiction
¢11 Under section 16-12-102(2) and C.AR,. 4.1, the People may file an interlocutory appeal to challenge certain types of adverse suppression rulings, including the suppression of evidence obtained from a search that the trial court deemed unlawful. People v. Smith, 254 P.3d 1158, 1160 (Colo. 2011). Here, the trial court's suppression of physical evidence that the Trooper obtained as a result of the vehicle search falls under the purview of the interlocutory appeal statute 'and rule.
III. Analysis
{12 To determine whether the trial court erred by suppressing the evidence, we first discuss the constitutional protection against unreasonable searches and the corresponding warrant requirement. Next, we describe the automobile exception to the warrant requirement, which permits the warrantless search of an automobile if there is probable cause to believe that the automobile contains evidence of a crime, We then outline the totality of the cireumstances test used in probable cause analyses, With that test in mind, we then address the trial court's conclusion that the odor of marijuana cannot contribute to probable cause now that possession of one ounce or less of marijuana is allowed under Colorado law. We hold that the odor of marijuana is relevant to, the totality of the cireamstances test and can contribute to a probable cause determination. Given that rule, we conclude that, under the totality of the cireumstances here, probable cause existed to search the vehicle, meaning the trial court's suppression order was erroneous. ' L
A. Standard of Review
{18 A probable cause determination, is a mixed question of law «and fact. People v. Coates, 266 P.3d 397, 400 (Colo. 2011). "When reviewing a trial court's suppression order, we give deference to the trial court's findings of fact but review its application of law de novo." People v. Vaughn, 2014 CO 71, ¶ 9, 334 P.3d 226, 229; see also Grassi v. People, 2014 CO 12, ¶ 11, 320 P.3d 332, 335.
B. The Fourth Amendment and Probable Cause
114 People 'have a const1tut10na1 ~ right to be free from unreasonable searches and seizures. U.S. Const. amend. IV; Colo. Const. art, II, §,7. A warrantless search is presumptwely unreasonable and therefore unconstitutional "unless it is supported by probable cause and is justified under one of the narrowly defined exceptions to the warrant requirement.". Mendez v.. People, 986 P.2d 275, 279 (Colo. 1999). One of those exceptions is the automobile exception, which "allows police officers to conduct a warrant-less search of an automobile if they have probable cause to believe that the automobile contains evidence of a erime." People v. Hill, 929 P.2d 785, 739 (Colo. 1996); see also California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) ("The police may search an automobile and the
"15 Here, it is undisputed that the Trooper did not have a warrant to conduct a search of the automobile. Therefore, we must determine whether the Trooper had probable cause to believe that the vehicle contained evidence of a crime to jfis’qify his search under the automobile exception.
$16 "A police officer has probable ecause to conduct a search when 'the facts available to [the officer] would warrant a [person] of reasonable caution in the belief that contraband or evidence of a crime is present." Florida v. Harris, — U.S. —, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61 (2013) (second alteration in original) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1988) (plurality opinion)). As the United States Supreme Court has stressed, "the ultimate touchstone of the Fourth Amendment is 'reasonableness.'" Riley v. California, — U.S, —, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). For that reason, probable cause is a commonsense concept that requires judges to consider the totality of the cireumstances to determine "whether a fair probability exists that a search of a particular place will reveal contraband or evidence of a crime." Mendez, 986 P.2d at 280. It is not a standard that "lend[s] itself to mathematical certainties" and instead is based on "factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act." Id.; see also Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ("[P Jrobable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules."). In sum, the totality of the cireum-stances test for probable cause is an "all-things-considered approach" that calls for consideration of any and all facts that a reasonable person would consider relevant to a police officer's belief that contraband or evidence of a crime is present. See Harris, 183 S.Ct. at 1055-56.
'A 17 With these principles in mind, we now turn to the role that the odor of marijuana can play in the totality of the civrenmstances test in light of the fact that possession of one ounce or less of marijuana is now allowed under Colorgdo law. **
C. Probable Cause and Amendment 64
1 18 Since passage of "Amendment 64" to the Colorado Constitution in 2012, martjuana use, possession, and growth are lawful under Colorado law in certain cireumstances. Colo. Const. art. XVIII, § 16, cl, 8. As pertinent here, Amendment 64 states that it is "not unlawful and shall not be an offense under Colorado law" for a person over twenty-one years of age to possess one ounce or less of marijuana. Id, But consistent with this constitutional provision, section 18-18-406(4)-(5) makes it a crime for a person to knowingly possess more than one ounce of marijuana or marijuana concentrate. See also §. 18-18-4338 ("The provisions of this part 4 do not apply to a person twenty-one years of age or older acting in conformance with section 16 of article XVIII of the. state constitution ...."). The statute also makes it a crime for those other than licensed marijuana facilities to knowingly possess marijuana or marijuana concentrate with the intent to sell or distribute it, and it classifies each offense under this provision based upon the amount of marijuana involved. § 18-18-406(2)(b)(I), (III). Thus, 'Colorado law makes certain marijuana-related activities lawful and others unlawful.
119 The trial court here found that because possession of one ounce or less of marijuana is allowed under Colorado law, the odor of marijuana cannot contribute to a determination of probable cause. As the trial court observed, "The dog cannot alert based on quantity. And so, he is alerting on illegal substances. and legal substances." The trial court consequently concluded that the odor
120 We disagree with this reasoning. As the United States Supreme Court has stated, the totality of the circumstances test for probable cause is an "all-things-considered approach," Harris, 188 S.Ct., at 1055, and its "ultimate touchstone" is reasonableness, Riley, 184 S.Ct. at 2482 (quoting Stuart, 547 U.S. at 403, 126 S.Ct. 1948), A possible innocent explanation or lawful alternative may add a level of ambiguity to a fact's probative value in a probable cause determination, but it does not destroy the fact's usefulness outright and require it to be disregarded. -
€21 Indeed, Colorado courts and law enforcement frequently consider non-criminal and legally ambiguous conduct in probable ecause analyses, and the possibility of an innocent justification merely affects a fact's weight and persuasiveness, not its inclusion in the analysis. See People v. Pacheco, 175 P.3d 91, 95 (Colo. 2006) ("If only non-eriminal activity is corroborated, the question whether probable cause exists focuses on 'the degree of suspicion that attaches to [the] particular types of corroborated non-criminal acts....'" (quoting People v. Leftwich, 869 P.2d 1260, 1268 (Colo. 1994))); People v. McCoy, 870 P.2d 1231, 1237-38 & n. 9 (Colo. 1994) (holding that probable cause does not require specific information that a particular crime has been committed, and stating that the possibility of an innocent alternative explanation is merely a factor in the totality of the cireumstances test); People v. Atley, 727 P.2d 376, 378 (Colo. 1986) (holding that probable ecause existed to search an apartment for psilocybin mushrooms despite the possibility that the mushrooms were lawfully grown); of, Gates, 462 U.S. at 248 n. 18, 108 S.Ct. 2317 ("In making a determination of probable cause the relevant inquiry is not whether particular conduct is 'innocent' or guilty," but the degree of suspicion that attaches to particular types of non-criminal acts.")
22 Mendez helps to illustrate how facts that are ambiguous as to innocence or criminality fit into the totality of the cireum-stances test. In that case, the police responded to a trespass complaint at a motel and, while there, noticed the "strong odor of burning marijuana" emanating from a room directly across from the elevator, 986 P.2d at 278. We held that the officers' warrantless entry into the motel room fell under the exigent circumstances exception to the warrant requirement and was supported by probable cause that contraband or evidence of eriminal activity existed inside. Id, at 280, 288. In so holding, we rejected the defendant's argument that the police officers could not rely upon the odor of burning marijuana in their probable cause determination given that medicinal marijuana use was an affirmative defense to a charge of marijuana possession and the police "could not readily determine whether the marijuana was being used illegally or for medicinal purposes." Id, at 281 n. 4. As we reasoned, requiring police to know that certain contraband is being used in an illegal rather than a legal manner
128 In sum, our precedent is consistent with the principle that, while a possible innocent explanation may impact the weight given to a particular, fact in a probable cause determination, it does not wholly eliminate the fact's worth and require it to be disregarded. Applying that principle to the trial court's order here, we note that while Amendment . 64 allows possession of one ounce or less of marijuana, a substantial number of other marijuana-related activities remain unlawful under Colorado law. Given that state of affairs, the odor of marijuana is still suggestive of criminal activity, Hence, we hold that the odor of marijuana is relevant to the totality of the cireumstances test and can contribute to a probable cause determination. See Harris, 188 S.Ct. at 1058 ("The questlon—sumflar to every inquiry into probable caquse-is whether all the facts surrounding a dog's alert; viewed through the lens of common sensé, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test."); see also State v. Senna, 194 Vt. 288, TO 45 50-51 (2013) ("I Wle conclude that the trial court properly considered the odor of fresh marijuana emanating from defendant's home in assessing probable cause to search his residence.... [Thhe fact that Vermont has a registry of patients who are exempt from prosecution for possession or cultivation of marijuana does not undermine the significance of the smell of marijuana as an indicator of criminal activity."). The trial court therefore erred when it' dlsregarded the odor of marijuana in 1ts assessment of probable cause.
124 Having concluded that the odor of marijuana can properly be considered as part of the totality of the cireumstances test for probable cause, we now turn to the facts of this case to determine whether the trial court erred in determining that the Trooper lacked probable- cause to search the vehicle.
D. Application
$25 Based on the record in this case, we conclude that the Trooper had probable cause to search the vehicle because, under the totality of the cireumstances, a "fair probability existed] that a search of [the. vehicle would] reveal contraband or evidence of a crime." Mendez, 986 P.2d at 280.
126 First, Zuniga and the driver gave remarkably disparate accounts of their visit to Colorado. The driver stated that he and Zuniga arrived in Colorado four days prior, stayed in a hotel somewhere in the Denver ared, and did nothing at all. By contrast, Zuniga stated that he and the driver arrived in' Colorado two days prior, stayed with his grandmother somewhere in the Denver area, and spent their time visiting his ailing grandmother, traveling to the mountains, and walking along the Sixteenth Street Mall in Denver, The vast inconsistencies between the two men's stories lead to a reasonable infer-enee that the two men were attempting to conceal illegal conduct from the Trooper,
'127 Second, the Trooper testified that Zu-niga and his driving companion exhibited "extreme" nervousness, While nervousness is a natural reaction that any driver might have when confronted with law enforcement at a traffic stop, United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997), the Trooper's testimony here. makes it clear that the two men's nervousness in this case was exceptional and suggestive of suspicious activity, see United States v. Simpson, 609 F.3d 1140, 1147-48 (10th Cir. 2010) (holding that nervousness is a common reaction and can be difficult to evaluate but that "[elxtreme and persistent nervousness ... 'is entitled to somewhat more 'weight'" (quoting United States v. West, 219 F.3d 1171, 1179 (10th Cir. 2000))); People v. Morales, 935 P.2d 936, 941 n.7 (Colo. 1997) (noting that the United States Supreme Court has found reasonable suspi-clon, of drug trafficlung based in part upon nervous behavior (citing Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1819, 75 L.Ed.2d 229 (1988) (plurality opinion})); People v. Olson, 175 Colo. 140, 485 P.2d 891, 898 (1971)
128 Third, the Trooper's detection of a "heavy odor" of raw marijuana contributed to the Trooper's conclusion that marijuana was in the vehicle; potentially in an illegal amount. As discussed above, the odor of marijuana remains relevant to probable cause determinations and can support an inference that a crime is ongoing even though possession of one ounce or less of marijuana is allowed under Colorado law, Many marijuana-related activities remain illegal in Colorado, meaning the detection- of a marijuana odor-particularly a "heavy" odor-still adds to the totality of the cireumstances and can contribute to a probable cause determination.
€ 29 Finally, Lobo's alert similarly suggested that illegal drugs were present in the vehicle. His alert could have stemmed from the two men's possession of a legal amount of marijuana, but it also could have stemmed from the possession of an ilegal amount of marijuana or any amount of cocaine, methamphetamine, or heroin, thus giving rise to an inference of criminality and contributing to the existence of probable cause,
T30' Armed with the two men's differing stories, their exceptional nervousness, the strong odor of raw marijuana, and Lobo's alert at the rear of the vehicle, the Trooper concluded that a "fair probability exist[ed] that a search of [the vehicle would] reveal contraband or evidence of a crime."
IV. Conclusion
1 31 We hold that the odor of marijuana is relevant to the totality of the cireumstances test and can contribute to a probable cause determination. Thus, the trial court in Zuni-ga's case erred when it disregarded the odor of marijuana in its probable cause analysis. Under the totality of the cireumstances in this case, the Trooper had probable cause to search the vehicle for illegal drugs, We therefore reverse the trial court's order suppressing evidence obtained from the search and remand for proceedings consistent with this opinion.
. The trial court found reasonable suspicion for the traffic stop. That determination is not before us in this interlocutory appeal, See infra note 3.
. " 'Marijuana concentrate' means hashish, tet rahydrocannabinols, or any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahydro-cannabinols." § 18-18-102(19), C.R.S. (2015).
. In his answer brief, Zuniga, in addition to opposing the People on the probable cause issue, challenged some of the trial court's other findings. We do not address any of those issues, however, because CAR. 4.1 (a) does not allow a - defendant to bring an interlocutory appeal of a trial court decision that favors the prosecution. People v. Gothard, 185 P.3d 180, 183 (Colo. 2008); see also Smith, 254 P.3d at 1160.
. Cases from other jurisdictions also reaffirm the principle that non-criminal or legally ambiguous facts are germane to the totality of the circumstances test for probable cause. See, e.g., McCoy v. State, 491 P.2d 127, 130 (Alaska 1971) (holding that the possibility that the defendant procured contraband in an innocent manner "do[es} not negate the facts and circumstances within the officers' knowledge which supplied the probable cause basis for their belief that McCoy had committed a felony"); Bennett v. State, 345 Ark. 48, 44 S.W.3d 310, 313 (2001) (holding that the odor of denatured alcohol, a chemical used in methamphetamine manufacture, is part of the totality of the circumstances).
. The Trooper also testified about Zuniga's "overly nice" demeanor during the traffic stop. A ' person's "suspicious demeanor" can be a part of * the totality of the circumstances test for probable cause, see Olson, 485 P.2d at 893 ("'The combination of the suspicious demeanor of the three occupants of the vehicle and the subsequent odor of marijuana ... was a sufficient basis upon which to predicate probable cause. ..."), but under the facts of this case, we do not consider Zuniga's "overly nice" demeanor as supportive of probable cause.
. Because we conclude that all of the facts discussed above, together, establish probable cause, we need not and do not reach the People's alternative argument that the dog alert alone establishes probable cause in this case.
Dissenting Opinion
dissenting.
.. 132 Had this suppression issue come to us before Amendment 64, it would have been an easy call. But not today. Today, it is much trickier because the mere odor of marijuana no longer signifies a violation of state law.
I. Warrantless Vehicle Searches
. When a search occurs outside the safeguards of the warrant process, we pre
184 As the majority explains, one exception to the warrant requirement concerns automobiles. See maj. op. 114. I take no issue with the majority's recitation of this exception or its description of the probable cause standard. Instead, I part company with the majority over whether that standard has been met here.
II. Application and Analysis
{385 The majority concludes there was probable cause for the Trooper to search Zuniga's luggage because (1) Zuniga and the driver told different stories about their travels in Colorado, (2) Zuniga and the driver were exceptionally nervous, (8) the Trooper smelled a strong odor of raw marijuana, and (4) the narcotics dog, Lobo, alerted. Id. at 130. While I agree with the majority that some of these facts raise reasonable suspi-clon, I disagree with its conclusion that together they amount to probable cause.
A. Conflicting Stories
136 The driver and Zuniga related very different accounts of their travels, and 'the majority is correct that the "vast inconsisten-cles" in their stories allowed for an inference of criminal activity. Id, at €26, But I also agree with the majority that the divergent stories alone do not amount to probable cause justifying a search of the vehicle. Therefore, I turn to the other cirenmstances on which the majority relies.
B. Nervousness -
137 The majority discusses how jittery Zuniga and his companion seemed to be. But as any generally law-abiding citizen who's been stopped for a traffic violation will attest, everybody ''gets nervous when the flashing lights appear. Courts therefore realize "[njer-vousness is of limited value." United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir. 2010). "[Ilt is common for most citizens, 'whether innocent or guilty-to exhibit signs of nervousness when confronted by a law enforcement officer'" Id. (quoting United States v. Wood, 106 F.3d 942, 948 (10th Civ. 1997));, see also People v. Goessl, 186 Colo. 208, 526 P.2d 664, 665 (1974) ("'The People suggest that the defendant's nervous state in the presence of the officer indicates probable cause. Such a suggestion must be rejected. It is normal for law-abiding persons, as well as persons guilty of eriminal activity, to be nep-vous when stopped by a policeman for a traffic offense."). Moreover, "unless the police officer has had significant knowledge of a person, it is difficult, even for & skilled police officer, to evaluate whether a person is acting normally for them or nervously." Simpson, 609 F.3d at 1147-48.
"38 Perhaps this explains why the majority repeatedly stresses that both the driver and Zuniga exhibited "extreme" nervousness. See maj. op. 1T 1-2, 5, 27. There are plenty of specific manifestations of nervousness in this record-the shaking hands, a sweaty face, the stutter, failure to make eye contact-but the Trooper observed these things in the driver, not Zuniga. While the record contains generic comments that Zuniga, "also ap-pearled] nervous," there is little in the way of particular obsérvations to support that assessment. And when the Trooper testified "the nervousness of the driver and the passenger" was "to the extreme that it wasn't normal," he pointed to the sweaty face and failure to make eye contact-things he had described seeing from the driver-to make the point.
139 Big deal, you might say; surely the driver's behavior still goes to whether there is probable cause to search the car under the totality of the cireumstances? True enough. But if we are to let common sense guide us,
C. The Odor of Marijuana
[ 40 The majority concludes the trial court erred by failing to consider the odor :of marijuana, see maj. op. 128, but the trial court's probable cause analysis did address the smell of marijuana. As revealed by the trial court's patient engagement with questions from the prosecutor, the court considered all the information on which the majority relies. It simply did not perceive the odor of marijuana, as inherently suspicious and was appropriately cautious about drawing incriminating inferences from ambiguous facts.
41 Given marijuana's status in this jurisdiction, just smelling marijuana around a person at least twenty-one years old
[ 42 To bolster its conclusion that the scent of marijuana can still contribute to probable cause, the majority looks back in time to Mendez v. People, 986 P.2d 275 (Colo. 1999). Recall that case involved a 1995 warrantless search of a motel room after an officer smelled burning marijuana while standing in the hall, Id. at 278. We credited the scent in establishing probable cause even though the officer did not know if the use of marijuana there complied with Colorado's medical marijuana regime. Id. at 281.& n. 4. Of course, Mendez arose in a very different regulatory world in which marijuana was illegal under state law though medicinal use could provide a defense to prosecution in some cireum-stances. See id.
143 Despite the changes wrought by Amendment 64, it is true, as it was true in the time of Mendez, that not all marijuana-related activities are legal in Colorado, But we rested our decision on a common-sense perception that the smell of burning marijuana gave rise "to a very high probability" that a search would fevea} contraband or evidence of a crime. Id. at 281. Today, however, unlike in 1995, possession of up to an ounce of marijuana by people twenty-one years of age and older is legal, See Colo. Const. art, XVIII, § 16(8)(a). Therefore, it no longer stands to reason that the same probability of state-law criminality attends the scent of marijuana.
{44 The majority also looks to State v. Senna, 194 Vt, 283, 79 A.3d 45, 50-51 (2018), where the Vermont Supreme Court concluded the smell of marijuana continued to have significance as an indicator of criminal activity despite reform of Vermont's marijuana laws. Maj. op. " 23. Reliance on Senna seems misplaced given that registered patients in Vermont were merely granted exemptions from arrest and prosecution for some forms of marijuana possession. See 79 A.S3d at 49 ("[The law creates a defense to prosecution."). Further, the Vermont court expressly distinguished its laws from the more permissive laws of Massachusetts, Id. That state has decriminalized possession of less than one ounce of marijuana, though possession remains a civil violation. See Commonwealth v. Overmyer, 469 Mass. 16, 11 N.E.3d 1054, 1058 (2014), Consequently, the Supreme Judicial Court of Massachusetts has held that the smell of burnt marijuana "no longer. constitutes a specific fact suggesting eriminality," id, (discussing Commonwealth v. Cruz,
T45 Perhaps because the scent alone is largely meaningless, the majority also contends that "detection of a 'heavy odor' of raw marijuana contributed to the Trooper's conclusion that marijuana was in the vehicle, potentially in an illegal amount." Maj. op. 28. But this is puzzling because it suggests that a "heavy" smell actually has something to do with weight.
T 46 Of course, the strength of a smell is a subjective determination. See Overmyer, 11 N.E.8d at 1059 (citing study and explaining that smell can be affected by gender, age, and ambient temperature, among other factors). But even if scent intensity could be standardized and made objective ("On a 1 to 10 scale, it smelled like an 8."), nothing here demonstrates that the pungeney of a smell relates to the amount of the substance giving off the seent. Even if a direct relationship between smell and drug weight can be established in theory, the record before us won't allow that inference in this case. On the contrary, the Trooper disclaimed any ability to discern from his own sense of smell the weight of marijuana present, and he made clear his dog has no such power either.
147 So, even if the odor of marijuana is relevant, how suspicious is it these days? I worry there may be a tendency to let this aroma keep tipping the balance in favor of searches, stops, and arrests, despite the decision of the people of Colorado to legalize possession of marijuana in small quantities. Thus, here, I'm still left short of probable cause because there is a conspicuous absence of evidence of an fllegal quantity.
D. The Dog Alert -
148 Past cases from this court and the United States Supremé Court establish that a dog alert by itself can establish probable cause to support a search, provided the dog's training and experience give sufficient reason to believe the alert is reliable. See Florida v. Harris, -U.S. -, 133 S.Ct. 1050, 1057, 185 L.Ed.2d 61 (2013); People v. Esparza, 2012 CO 22, ¶ 12,272 P.3d 367, 370.
149 It is revealing that the majority derives probable cause from so many sources instead of simply resting on the dog alert, The majority is forced to take this route because this case differs from other dog sniff cases in a critical respect. In cases like Harris and Esparza, the dogs were trained to alert for contraband and only contraband.
T50 To conclude as the majority does that the alert "suggested that illegal drugs were present in the vehicle" goes too far. Maj. op. 129, The alert did not "suggest" the pres
T 51 Therefore, I do not find Lobo's eryptic alert to be helpful either, Given the marginal significance of the divergent travel stories, and the insignificance of nervousness and the odor of marijuana, I am not persuaded that those facts somehow throw the dog's ambiguous alert into a more nefarious light. |.
E. Totality
152 Even if the facts are individually weak, does putting them all together create probable cause? I don't think so, As the trial court observed, "Something was odd. But the fact that something doesn't add up and something is odd does not equal probable cause." Marshaling several peculiarities suggesting a suspect has been up to no good does not provide probable cause that drugs will be found in a particular location, See People v. Leftwich, 869 P.2d 1260, 1265 (Colo, 1994) ("The totality-of-the-cirenmstances test does not lower the standard for probable cause determinations."). The state constitution may have changed,; but it seems our empirical intuitions about martjuana and crime are still catching up. Ask yourself this: would we find probable cause here without our residual preconceptions from the world before Amendment 647 If there were no scent of marijuana, would we say that divergent stories and extreme nervousness amount. to probable cause for the government to open your car, start rummaging through your bags, and dump out your -cooler? I doubt it, And if not, then how much emphasis are we effectively placing on the odor of marijuana in this case? Too much, I think,
IIL Conclusion
53 In our post-Amendment-64 world, the totality of these relatively innocuous cireum-stancés does not a recipe for probable cause make. Therefore, I respectfully dissent.
. As the majority notes, Colorado voters passed Amendment 64 and added to their constitution a section titled, "Personal use and regulation of marijuana." Colo. Const. art. XVIII, § 16. This - 2012 change permits possession of up to one ounce of marijuana by people twenty-one years of age and older, Colo. Const.. art, XVIII, § 1603)(@).
. It is reasonable to think the Trooper knew ' Zuniga was over twenty-one given that he testified to taking Zuniga's identification and running a warrant check that came back negative.
. Relatedly, the assumption that narcotics detection dogs only detect contraband has been critical in past cases holding that dog sniffs are not searches under the Fourth Amendment. The Supreme Court concluded that exposing a person's luggage to a "well-trained narcotics detection dog" is not a search because "the sniff discloses only the presence or absence of narcotics, a contraband item." United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). "[The canine sniff is sui generis" because it can only reveal what a person has no right to possess, Id, "[Aluny interest in possessing contraband cannot be deemed 'legitimate,' and thus, governmental conduct that only reveals the possession of contraband 'compromises no legitimate privacy interest," " Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 LEd.2d 842 (2005) (quoting United States v. Jacobsen, 466 U.S. 109, 123, 104 S.Ct 1652, 80 L.Ed.2d 85 (1984).
Our cases addressing sniffs as searches rest on similar assumptions that dogs are in effect reliable contraband-detection machines. See Esparza, ¶ 11, 272 P.3d at 370 (declining to find "as a factual and conceptual matter, that the alert of a trained narcotics detection dog can indicate anything more than the presence or absence of contraband"). But see id. at 16, 272 P.3d at 372 (Hobbs, J., dissenting) {explaining the problem of false positives). The issue of whether this sniff was a search is not before us. Like the majority, I decline to resolve it.