Can a Search by a Drug Dog Violate Constitutional Rights?

Court struggles with relationship between state and federal law in 4-3 decision

The Colorado Supreme Court struggled with the interplay between federal and Colorado law governing marijuana in a 4-3 decision where the underlying case didn’t actually involve marijuana. 

In People v. McKnight, the court took up two questions: Is marijuana “contraband” for the purpose of a drug-detection dog’s sniff, given its status as legal in some contexts under state law and illegal under federal law? And can an alert by a drug-detection dog that has not been trained to differentiate between marijuana and other controlled substances by itself establish probable cause to justify searching a vehicle without a warrant?

Yes, and no, said the Supreme Court. The court upheld the reversal of a man’s convictions on charges related to methamphetamine possession based on his challenge to the constitutionality of the search that turned up the drug pipe and residue. The court ruled the officer who pulled over defendant Kevin McKnight didn’t have probable cause to search his car without a warrant, largely because the drug-detection dog used wasn’t trained to differentiate between marijuana and other substances.

Central to the court’s analysis is the argument by McKnight’s attorney, public defender John Plimpton, that marijuana’s legal status under Amendment 64 gives a person a reasonable expectation of privacy if a search has the possibility of turning up marijuana the person is possessing legally. Whether a person has a reasonable expectation of privacy is a factor used to determine whether a law enforcement action is a search subject to constitutional limitations. If a search can only reveal illegal activity, then a person doesn’t have any privacy expectation.

The rest of the circumstances didn’t establish probable cause either, said the Supreme Court. Because of marijuana’s legal status under Colorado law, McKnight had a reasonable expectation of privacy under the circumstances, and the officer’s search violated his state constitutional rights.

“We hold that a sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under article II, section 7 of the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older,” wrote Justice William Hood for the majority. “We further hold that, in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff.”

In 2015, Craig police officer Bryan Gonzales pulled over McKnight after seeing his vehicle parked for 15 minutes outside a house where law enforcement found illegal drugs during a raid several weeks earlier. Gonzales also recognized the passenger in McKnight’s car as someone he knew to have used methamphetamine sometime in the past, though Gonzales didn’t know exactly when. Gonzales then used a drug-detection dog, Kilo, to search McKnight’s car. Kilo indicated he detected drugs. Officers searched the vehicle and found a pipe that had been used to smoke methamphetamine. The Moffat County District Court convicted McKnight on possession of paraphernalia and possession of a controlled substance.

McKnight asked for suppression of the evidence found as a result of Kilo’s signal and the officers’ subsequent search on the grounds that using Kilo constituted an unreasonable search under the state constitution and that Kilo’s indication did not establish probable cause for officers to search his vehicle. The district court denied the motion. But the Court of Appeals agreed with McKnight and overturned his conviction in 2017 and sent the case back to district court. The court made clear its decision would only apply under Colorado law, since marijuana is still illegal federally.

Paul Koehler, who argued at the Supreme Court for the Colorado Department of Law, said a drug dog’s sniff should not be considered a search subject to constitutional restrictions. Because Amendment 64 legalized a narrow scope of purchasing and using marijuana and illegal uses remain, he argued, a person should not have a reasonable expectation of privacy for possessing it legally.  In a statement to Law Week, Office of the Attorney General spokesperson Lawrence Pacheco said, “The Attorney General’s office is studying the McKnight decision, and the office will work with its law enforcement partners in understanding this decision’s possible implications.” The statement declined to comment specifically on whether the office would attempt to appeal the decision to the U.S. Supreme Court. Attorney General Phil Weiser’s administration inherited the McKnight case from former Attorney General Cynthia Coffman, and the Supreme Court’s decision is the first development in the case since Weiser took office.

State or Federal?

The Supreme Court majority made clear they decided the case according to Colorado law. Since any use of marijuana is still illegal under federal law, arguably Kilo’s sniff wouldn’t be considered a search under the U.S. Constitution’s Fourth Amendment. The Court of Appeals made the same acknowledgement in its 2017 decision, saying the analysis would have looked quite different had a federal officer pulled over McKnight. 

Christopher Jackson, a member at Sherman & Howard with expertise in appellate and constitutional law, said he doesn’t believe the case would have an avenue for appeal to the U.S. Supreme Court. The state Supreme Court said the People waived the issue of federal preemption over Amendment 64 because they did not assert it in the lower courts. 

He added from a strategic perspective, a party wanting the U.S. Supreme Court to look at the issues in the case would probably have a better chance catching the highest court’s attention in a new case. “I think it would be easier to say, that was the decision in this case, but there are a bunch of open questions, and here’s this new cast that’s come around, and we think this new case is a better vehicle to answer those questions,” Jackson said.

The Supreme Court tussled over its decision, evidenced by three justices dissenting in two separate opinions. Chief Justice Nathan Coats penned a dissent that called the majority opinion a “selective and at times revisionist promenade through the history of both federal and state search and seizure law.” Coats disagreed with how the majority decided Colorado law interacts with federal law in the case.

Jackson said the larger question of whether federal law preempts Amendment 64 lingers in the wake of the McKnight decision. 

Coats addressed the importance of the questiont with the distinction between the state taking a hands-off approach to enforcing federal law and actually taking regulatory steps to legalize it and recognize the personal rights that accompany legalization.  

“I think Coats’ point, although he doesn’t say it explicitly, is the farther Colorado goes to affirmatively protecting marijuana possession, the more likely it is that a federal court is going to have to look at” the conflict between Amendment 64 and federal law that still criminalizes marijuana, Jackson said. 

Justice Carlos Samour wrote a separate dissent, joined by Justice Brian Boatright. Samour wrote he believes the majority made a misplaced reference to case law from Illinois. He wrote he believes the majority’s analysis skirted the question of whether a driver has a reasonable expectation of privacy in the odors that escape from his car and become part of the public airspace. 

Samour also wrote he believes the ruling is more related to Fourth Amendment jurisprudence than the Colorado Constitution.

In its analysis, the Supreme Court majority likened marijuana to guns, tobacco and alcohol — things that people can legally have in some circumstances, while other circumstances make it illegal to possess them. The opinion used the analysis as a justification for diverging from a previous Supreme Court ruling in People v. Eparza, in which the court based a decision on the assumption of duality in a drug dog’s sniff: It would reveal either the presence or absence of contraband.

The majority also looked at federal cases dealing with the boundaries of what is a search subject to constitutional protections. One example was the 1990 case U.S. v. Morales-Zamora from the 10th Circuit Court of Appeals, which looked at whether a person has a legitimate expectation of privacy under the Fourth Amendment if an odor of an illegal substance emanates from their vehicle and is detectable by a drug-detection dog. 

But none of those cases dealt with legalized marijuana, said the majority, in justifying the decision to base analysis on Colorado’s Constitution instead of the Fourth Amendment. 

“To the extent we end up alone on a jurisprudential island, it is an island on which Colorado voters have deposited us,” Hood wrote. “Our role is not to question their decision. Rather, it is to apply the logic of existing law to a changing world.”

But Coats noted in his dissent the majority’s philosophical departure from the court’s 2015 decision in Coats v. Dish Network. That case addressed whether the legislature intended to extend protections for “lawful” activities to activities made lawful under state law but remaining unlawful under federal law. 

“We there concluded that the term ‘lawful’ could not have been intended to include the possession of marijuana that remains ‘unlawful’ under federal law,” Coats wrote, “Which in our federal system not only applies in this jurisdiction but, in the event of conflict, actually reigns supreme over state law.”

—Julia Cardi

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