County District Court No. 15CR16 Honorable Michael Andrew
O'Hara, III, Judge
Cynthia H. Coffman, Attorney General, Paul Koehler, First
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, John B.
Plimpton, Deputy State Public Defender, Denver, Colorado, for
1 Since 2012, it has not been a violation of Colorado law for
people who are at least twenty-one years old to possess up to
one ounce of marijuana for personal use. Colo. Const. art.
XVIII, § 16(3)(a) (Amendment 64). To be clear, such
possession is neither a criminal violation nor a civil
2 This case presents two questions arising from our
state's marijuana laws and law enforcement's use of
dogs trained to detect marijuana and other controlled
substances. First, does deploying a dog trained to detect
marijuana to sniff a legitimately stopped vehicle constitute
a "search" for purposes of the constitutional
prohibitions of unreasonable searches? If so, law enforcement
may not deploy such a dog without reasonable suspicion of
criminal activity. Second, did the dog's alert in this
case give police probable cause to search Kevin Keith
McKnight's truck given that the dog was trained to alert
if he detected either legal or illegal substances?
3 Two of us (Dailey and Berger, JJ.) agree with McKnight in
answer to the first question, that is, that under our
state constitution, the deployment of the dog here was a
"search" requiring reasonable suspicion of criminal
activity. And because the totality of the relevant
circumstances did not give police reasonable suspicion to
conduct a dog sniff of his truck, we conclude that the
district court erred in denying his motion to suppress
evidence found in the truck.
4 But two of us (J. Jones and Berger, JJ.) would also agree
with McKnight in answer to the second question, that is, that
the dog's alert, in combination with the other relevant
circumstances, did not give the police probable cause to
search his truck, and, for that reason, the district court
erred in denying his motion to suppress evidence found in the
5 Because all of us agree that the court's error in
denying McKnight's motion to suppress was not harmless
beyond a reasonable doubt, we reverse the district
court's judgment of conviction and remand the case for
6 The police recovered a pipe containing white residue from
McKnight's truck. The People charged him with possession
of a controlled substance (based on the residue) and
possession of drug paraphernalia. McKnight moved to suppress
the evidence found in his truck, arguing that law enforcement
officers violated his constitutional rights by conducting a
dog sniff of his truck without reasonable
suspicion and by otherwise searching his truck
without probable cause.
7 At the suppression hearing, Officer Gonzales testified that
he saw a truck parked in an alley. The truck left the alley
and eventually parked outside of a house for about fifteen
minutes. This house, according to Officer Gonzales, had been
the subject of a search roughly seven weeks earlier that had
turned up illegal drugs. When the truck drove away, Officer
Gonzales followed it, saw it turn without signaling, and
pulled it over.
8 McKnight was driving the truck. Officer Gonzales said he
recognized McKnight's passenger from previous contacts
with her, "including drug contacts" involving the
use of methamphetamine. But when asked on cross-examination
at what time, to his knowledge, the passenger had last used
methamphetamine, Officer Gonzales declined to speculate about
that and conceded that he was "just aware that at some
point in the past she had been known to [him] as a user of
9 At Officer Gonzales' request, Sergeant Folks came to
the scene with his certified drug-detection dog, Kilo. Kilo
is trained to detect cocaine, heroin, ecstasy,
methamphetamine, and marijuana. He indicates that he has
detected the odor of one of these substances by exhibiting
certain behavior - barking, for example. His indicative
behavior, however, does not vary based on the particular
substance or amount of the substance he has detected.
10 When Sergeant Folks deployed Kilo to sniff McKnight's
truck, Kilo displayed one of his trained indicators. Officers
then told McKnight and the passenger to get out of the truck,
searched it, and found a "glass pipe commonly used to
11 After the district court denied McKnight's suppression
motion, the case proceeded to trial. A jury convicted
McKnight of both counts.
Standard of Review
12 When reviewing a suppression order, we defer to the
district court's factual findings as long as evidence
supports them, but we review de novo the court's legal
conclusions. Grassi v. People, 2014 CO 12, ¶
Was Kilo's Sniff a Search?
13 The Federal and State Constitutions give people the right
to be free from unreasonable searches and seizures. U.S.
Const. amend. IV; Colo. Const. art. II, § 7; People
v. Zuniga, 2016 CO 52, ¶ 14.
14 "Official conduct that does not 'compromise any
legitimate interest in privacy' is not a search subject
to the Fourth Amendment." Illinois v. Caballes,
543 U.S. 405, 408 (2005) (quoting United States v.
Jacobsen, 466 U.S. 109, 123 (1984)). Any interest in
possessing contraband is not legitimate. Id. And so
official "conduct that only reveals the
possession of contraband" does not compromise any
legitimate privacy interest. Id. Applying that
reasoning, the United States Supreme Court has held that
employing a well-trained drug-detection dog during a lawful
traffic stop does not implicate the Fourth Amendment because
that is not a search. Id. at 409-10. Likewise, our
supreme court has held that such a sniff is not a search
under our state constitution. People v.
Esparza, 2012 CO 22, ¶ 6.
15 Indeed, in People v. Mason, 2013 CO 32, ...