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People v. Cox

Supreme Court of Colorado, En Banc

February 6, 2017

The People of the State of Colorado, Plaintiff-Appellant
v.
John Martin Cox, II, Defendant-Appellee

         Interlocutory Appeal from the District Court Weld County District Court Case No. 16CR29 Honorable Shannon D. Lyons, Judge

         Order Reversed

          Attorneys for Plaintiff-Appellant: Michael J. Rourke, District Attorney, Nineteenth Judicial District Brynne Gant, Deputy District Attorney Greeley, Colorado

          Attorneys for Defendant-Appellee: Douglas K. Wilson, Public Defender James Merson, Deputy Public Defender Greeley, Colorado

          OPINION

          EID, JUSTICE

          ¶1 Trooper Joseph Ynostroza stopped John Cox for driving in the left lane. During the stop, the Trooper observed several factors that led him to suspect that there might be evidence of illegal activity in the trunk of the vehicle, including the fact that his canine alerted to the odor of drugs in the trunk. The Trooper opened the trunk where he found, among other things, two white trash bags with multiple sealed packages of marijuana. The trial court granted Cox's motion to suppress the evidence, finding that it is "unreasonable for an officer to rely on the alert from a canine trained to detect any amount of marijuana, including legal amounts." The trial court concluded that, based on the remaining factors to be considered, the Trooper did not have probable cause to search the trunk. The People now bring this interlocutory appeal pursuant to section 16-12-102(2), C.R.S. (2016), and C.A.R. 4.1.

         ¶2 We now reverse and hold that Trooper Ynostroza had probable cause under the totality of the circumstances. Importantly, the trial court issued its order before we issued our opinion in People v. Zuniga, 2016 CO 52, 372 P.3d 1052, where we said that although Amendment 64 of the Colorado Constitution allows possession of small amounts 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 circumstances test and can contribute to a probable cause determination.

¶ 23, 372 P.3d at 1059. Under Zuniga, then, the trial court erred in disregarding the canine alert as part of the totality of circumstances.

         ¶3 Considering the canine alert as part of the totality of the circumstances, coupled with the fact that Cox had two cell phones on the car seat, exhibited unusual nervousness, and gave an inconsistent explanation regarding his travels, we hold there was probable cause to search the trunk of Cox's vehicle. We therefore reverse the trial court's order suppressing the evidence found during the search and remand for further proceedings.

         I.

         ¶4 Trooper Ynostroza testified[1] that on the afternoon of January 5, 2016, he observed a lone vehicle driven by Cox traveling in the left lane on Interstate 76. The Trooper did not observe Cox pass any other vehicles or notice any obstructions that would require him to be in the passing lane, yet Cox remained in the left lane for the two miles that Trooper Ynostroza followed him. Because he believed Colorado law prohibits traveling in the left lane under such circumstances, the Trooper stopped Cox.

         ¶5 Cox provided Trooper Ynostroza with his driver's license and rental car agreement. The Trooper called Cox's information into dispatch and quickly received confirmation that his license was clear and valid. The Trooper noticed that Cox was unusually nervous; he based this conclusion on the fact that Cox had beads of sweat on his face, was stuttering, and was continuously licking his lips. Trooper Ynostroza testified that this was unusual and "not consistent with the average or the normal consistent violator that we stop day in and day out." He also saw two cell phones on the passenger seat. According to the Trooper, the presence of two cell phones and his other observations "led to the possibility that . . . [Cox] could be trafficking illegal contraband."

         ¶6 Trooper Ynostroza asked Cox to exit the car and come to the rear of the vehicle. Outside the car, Cox told the Trooper that he had rented the car in Sunnydale, California, on Christmas Day, which was eleven days earlier, and had driven "straight through" on his way to Bellevue, Nebraska. The Trooper was familiar with the drive from California to Nebraska and believed that Cox's explanation of his travel plans left eight days of driving unaccounted for. The Trooper examined the rental car agreement and noticed that the car was four days overdue. Cox said that he would call the company, and that it had his credit card information on file. Trooper Ynostroza asked dispatch to contact the rental company.

         ¶7 While waiting for information from the company, the Trooper asked Cox if he would mind opening the trunk, and Cox refused but acknowledged that the items in the trunk belonged to him. Over Cox's objection, Trooper Ynostroza had his canine unit, Lobo, conduct a free air sniff. Lobo is trained to alert to the odor of marijuana, methamphetamine, heroin, and cocaine, but the Trooper testified that Lobo's signal is the same regardless of the substance or quantity of the substance.

         ¶8 Lobo alerted on the trunk, and Trooper Ynostroza opened it, where, among other things, he found two white trash bags with multiple sealed packages of marijuana. Soon thereafter, dispatch reported back that the vehicle was due to the rental company but that Cox could extend the agreement.

         ¶9 Cox was charged with possession with intent to manufacture or distribute marijuana or marijuana concentrate, distribution of marijuana or marijuana concentrate, and improper usage of a passing lane. Cox asked the trial court to suppress the evidence obtained during the search of the vehicle's trunk because Trooper Ynostroza did not have probable cause to support the search. The trial court agreed and granted his motion. According to the trial court, it was error for the Trooper to rely upon the canine alert because the canine would alert to both legal and illegal amounts of marijuana. The court continued, "It stands to reason that possession of a legal substance cannot form the basis of finding probable cause to search for contraband." (Citing, inter alia, Commonwealth v. Overmyer, 11 N.E.3d 1054, 1058 (Mass. 2014)). The trial court concluded ...


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