When is a Search a Search?

Colorado Supreme Court hears oral arguments in drug-sniffing dog case

A case before the Colorado Supreme Court could redefine how police search for illicit drugs during traffic stops. 

The court heard oral arguments Wednesday for a case that demonstrates how Amendment 64 has complicated the state constitution’s protection against unreasonable searches and seizures. The court has taken up People v. McKnight to determine two questions: Whether marijuana is “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, whether an alert by a drug-detection dog that has not been trained to differentiate between marijuana and other controlled substances can establish probable cause to justify a search without a warrant.

In 2015, Craig police officer Bryan Gonzales pulled over defendant Kevin 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 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 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 Kilo’s indication did not establish probable cause for officers to search his vehicle. The district court denied the motion. The Court of Appeals agreed with McKnight, however, and overturned his conviction and sent the case back to district court.

Under Colorado law, said the Court of Appeals, a drug-detection dog’s indication that narcotics are present in a vehicle does not on its own establish probable cause for law enforcement to search the vehicle without permission, if the dog has not been trained to differentiate between marijuana and illegal drugs. The Court of Appeals ruled in July 2017 the circumstances taken together didn’t establish probable cause for the officer to search McKnight’s car without a warrant. The court made clear its decision would only apply under Colorado law, since marijuana is still illegal federally. 

During oral arguments, the justices focused much of their questioning on when a person has a reasonable expectation of privacy, which shields them from unreasonable searches. That reasonable expectation is a factor in considering whether an action by law enforcement is a search. The Court of Appeals ruled McKnight did have that expectation because of marijuana’s legal status under Amendment 64 and clarified McKnight would not have had an expectation of privacy if a search only had the possibility of turning up contraband.

Paul Koehler, arguing for the Colorado Department of Law to overturn the Court of Appeals, said a drug dog’s sniff should not be considered a search. Justice Richard Gabriel asked him to explain how he believes the concept of a reasonable expectation for privacy should factor in.

Koehler said he believes that while Amendment 64 mentions legalizing marijuana use and protecting it from being used to justify asset seizure, he doesn’t believe the law covers an expectation to privacy. 

“Even within the stated purposes … there is an indication that marijuana is not being legalized across the board,” he said.

Gabriel pointed out a section of Amendment 64 does address that expectation, and he pressed Koehler for more clarification. “In your view, even someone who has a legal amount of marijuana, there’s not a legitimate expectation of privacy because so many uses are still illegal,” he asked. Koehler agreed with Gabriel’s characterization of his argument. 

The narrow scope of marijuana purchasing and use legalized by Amendment 64, he added, isn’t enough to mean there’s no probable cause or reasonable suspicion to believe a crime has been committed.

“When we look at reasonable suspicion or probable cause determinations, they don’t have to do with slivers of possibilities of illegal uses,” he said. “I think the question is: Is there a reasonable probability that a dog is alerting to a substance that can be used illegally?” He later said he believes possession of marijuana never triggers a reasonable expectation to privacy, because it’s still illegal under federal law regardless of its status under various state laws. An alert from a drug dog should always trigger probable cause to search, he said.

As soon as McKnight’s arguing attorney, John Plimpton, got up to the podium, the justices began peppering him about how the interplay between federal and state marijuana laws affects the expectation of privacy. Plimpton said he believes the text of Amendment 64 renders federal law irrelevant in considering that expectation.

“If that is true, is there a preemption problem?” asked Justice Nathan Coats in response. “Does Colorado prevent finding out a federal crime?” Plimpton clarified Amendment 64 doesn’t prevent the federal government from enforcing the ban on marijuana, but rather it means state law enforcement no longer has the authority to enforce federal marijuana law. “[State and local law enforcement’s] authority to enforce federal law is governed by state law, and they can be deprived of the authority to enforce a federal law by state law,” he said.

Gabriel asked Plimpton whether McKnight had a subjective expectation for privacy, given that the officers found evidence of illegal drugs. Plimpton said he believes working backward in that way would go against established jurisprudence on searches and seizures.

“A search cannot be justified by what is found in the search,” Plimpton said. “If that were the case, every search would be constitutional because all the cases that reach the courts are where something illegal was found.” He added he believes a “subjective expectation” to privacy should be defined by what the instrument used to perform a search could possibly turn up.

Plimpton pushed back on Gabriel’s interpretation that federal cases do not seem to allow for an expectation of privacy in a dog’s sniff and don’t consider it a search. Such cases only deal with situations in which a dog could only find contraband, he said.

“They don’t say that there’s no subjective expectation of privacy in the passenger compartment,” Plimpton said. “They say there’s no subjective expectation of privacy in the information that the dog could convey to the police, and it really just attaches to the existence or non-existence of contraband.”

After answering questions related to whether the circumstances in McKnight’s case amounted to probable cause or reasonable suspicion by Gonzales, the state officer who pulled him over, Plimpton went silent in anticipation of more questions from the justices.

“Do you want to start where you were going to start?” joked Justice Brian Boatright, then more than 20 minutes into Plimpton’s arguments. 

At the end of his time, Plimpton reasserted his argument that Amendment 64 creates a reasonable expectation for privacy, regardless of marijuana’s illegality under federal law.

— Julia Cardi

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