Defining ‘Contraband’

Colorado Supreme Court will hear marijuana case on use of drug-sniffing dogs in vehicle searches

JAY TIFTICKJIAN

The Colorado Supreme Court last week announced it will hear a marijuana case that once again highlighted the gray area of the law created by the conflict between marijuana’s legalization in Colorado and its illegal status in federal jurisdictions. 

In People v. McKnight, the Supreme Court will decide whether the Colorado Court of Appeals made a mistake in ruling that police had probable cause to search a vehicle after a drug detection dog, which was not trained to differentiate between marijuana and other substances, gave a positive indication of the presence of narcotics in a vehicle.

The Supreme Court granted review of issues framed slightly differently than the Court of Appeals’ approach to People v. McKnight. To make a ruling on probable cause, the court will first consider whether, in light of marijuana’s legal status under Colorado law and illegality under federal law, marijuana is considered “contraband” in the context of a drug detection dog’s sniff. The Court of Appeals approached the case by considering the question of whether using a dog trained to detect marijuana to sniff a legally stopped vehicle constitutes a “search” for purposes of the constitutional protections against unreasonable searches.

Sam Kamin, Vicente Sederberg marijuana law and policy professor at the University of Denver Sturm College of Law, said should the Supreme Court eventually rule that marijuana is contraband for the purpose of a dog’s sniff, the decision wouldn’t affect state possession laws.

“The question here is whether the state or federal constitution was violated by the use of the dog,” Kamin said. Although precedent has established that a dog’s sniff does not constitute a “search” because it only reveals the presence or absence of contraband, the Supreme Court now must revisit the issue in light of marijuana’s legal status under Colorado law, he said.

In the underlying case, Craig police officer Bryan Gonzales pulled over Kevin McKnight in 2015 after seeing his vehicle parked outside a house subjected to a raid several weeks earlier by law enforcement. Gonzales subsequently called for a drug-detection dog, Kilo, to be brought to the scene, who indicated the presence of narcotics. Officers searched the vehicle and found a methamphetamine pipe containing residue. The Moffat County District Court convicted McKnight on possession of paraphernalia and possession of a controlled substance.

McKnight moved to suppress 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 his indication did not establish probable cause for officers to search his vehicle. The district court denied the motion. 

But the Court of Appeals ruled that a sniff from a dog not trained to differentiate between marijuana and other substances does not, on its own, establish probable cause to search a vehicle without a warrant. In addition, the Court of Appeals ruled the totality of the circumstances had not established probable cause for Gonzales to search McKnight’s car without permission. The court vacated McKnight’s convictions and remanded the case.

SAM KAMIN

DUI defense attorney Jay Tiftickjian agreed that the Supreme Court deciding whether marijuana is considered contraband wouldn’t affect Colorado’s possession laws. The pertinent question to him, he said, would be whether such a ruling would give state law enforcement officers the ability to use the odor of marijuana to justify a search.

“Just because it’s illegal under federal law, does that give an [officer] who’s just enforcing county and state laws the cause to go in that vehicle and search it further?” Tiftickjian said. He explained that rather than charging a person with marijuana possession, a law enforcement officer would be more interested in finding other more serious contraband through the search.

“They’re not going to care about the marijuana possession; they’re just going to use that as the basis for the search in the first place,” he said.

The Colorado Supreme Court addressed the use of odor by a law enforcement officer in 1982 with People v. Roybal, in which the court ruled an odor of alcohol on a driver’s breath does not in itself give a law enforcement officer reason to arrest a person for driving under the influence. Tiftickjian said he doesn’t believe People v. McKnight will have any implications for the precedent set by the Roybal case.

Kamin said he could imagine the Supreme Court taking an approach to People v. McKnight similar to its analysis in Coats v. Dish Network, in which the court ruled an employment statute that stipulates employees can’t be fired for legal off-duty conduct does not apply to marijuana use because the drug is illegal federally.

“The question here will be, will [the court] make the same conclusion about whether marijuana is considered contraband, simply because it is prohibited by federal law?” Kamin said, adding that the Supreme Court’s eventual decision should help settle the law around People v. McKnight’s key issues. “We have one appellate opinion on this, but people have sort of known that the court was going to weigh in on this issue before too long.” 

— Julia Cardi

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