Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 16CA50
Attorneys for Petitioner: Philip J. Weiser, Attorney General
Paul Koehler, First Assistant Attorney General Denver,
Colorado
Attorneys for Respondent: Megan A. Ring, Public Defender John
Plimpton, Deputy Public Defender Denver, Colorado
OPINION
HOOD
JUSTICE
¶1
Inside defendant Kevin McKnight's truck, police officers
discovered a pipe containing what later proved to be
methamphetamine residue. That discovery culminated in
McKnight's conviction for certain drug offenses. On
appeal, he challenged the constitutionality of the search
that revealed the pipe.
¶2
A division of the court of appeals reversed McKnight's
convictions. People v. McKnight, 2017 COA 93, ¶
25, __ P.3d__ . Each member of the division wrote separately,
wrestling with what effect, if any, legalized marijuana in
Colorado should have on the constitutionality of the search
of McKnight's truck. To which you might say, but this is
a methamphetamine case. So, why are we talking about
marijuana? Well, the drug-detection dog used to find the
pipe, Kilo, was trained to alert on multiple drugs, including
marijuana. Even a hint of marijuana can trigger the same
response from Kilo as any quantity of methamphetamine.
¶3
And that's where things get tricky. After all, the
possession of an ounce or less of marijuana by someone
twenty-one or older is legal in Colorado, following the
passage of Amendment 64, Colo. Const. art. XVIII, §
16(3), even though such possession remains illegal under
federal law. Thus, no matter how reliable his nose, Kilo can
now render a kind of false positive for marijuana. He has
been trained to alert to marijuana based on the notion that
marijuana is always contraband, when that is no longer true
under state law. And historically, whether a drug-detection
dog might alert on noncontraband drives whether the dog's
sniff constitutes a search implicating constitutional
protections. The dog's sniff arguably intrudes on a
person's reasonable expectation of privacy in lawful
activity. If so, that intrusion must be justified by some
degree of particularized suspicion of criminal activity.
¶4
Does this mean that Amendment 64 gave McKnight a reasonable
expectation of privacy under either the federal or state
constitution that was violated by Kilo's keen sense of
smell? McKnight says yes. Among other things, he claims that
the Colorado Constitution prohibited Kilo's intrusion
without at least reasonable suspicion that McKnight had
committed or was committing a crime. Because there was none,
McKnight asserts that the trial court should have suppressed
the pipe. Two members of the division agreed.
McKnight, ¶ 3.
¶5
And even if the "sniff [was] up to snuff" (to use
Justice Kagan's popular shorthand from a slightly
different context in Florida v. Harris, 568 U.S.
237, 248 (2013)), McKnight further argued that there was no
probable cause for the post-sniff hand search of his truck
that revealed the pipe. Again, because of Amendment 64, two
members of the division agreed. McKnight, ¶ 4.
¶6
The People counter that, despite Amendment 64, marijuana
remains contraband in many circumstances at the state level,
and illegal under all circumstances federally, and thus
Kilo's sniff was not a search requiring so much as
reasonable suspicion. The People further contend that an
alert from a dog trained to detect marijuana, in addition to
other substances, still provides probable cause justifying a
search.
¶7
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. 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. Because there was no such
probable cause justifying Kilo's search of McKnight's
truck, the trial court erred in denying McKnight's motion
to suppress.
¶8
Accordingly, we affirm the judgment of the court of appeals.
I.
Facts and Procedural History
¶9
Evidence presented at a suppression hearing established the
following facts.
¶10
While on patrol in an unmarked police vehicle one night in
February 2015, Craig Police Officer Bryan Gonzales observed a
parked pickup truck facing the wrong way in a one-way alley
near an apartment complex. A man stood outside of the
passenger-side door of the truck. Although Officer Gonzales
saw no behavior consistent with an exchange or transaction,
he followed the truck as it traveled a few blocks. The truck
then parked in front of a residence where police had found
drugs almost two months earlier, and it remained parked there
for approximately fifteen minutes. During that time, no one
exited the truck or the residence. When the truck started
moving again, Gonzales trailed along.
¶11
When the driver of the truck failed to signal a turn,
Gonzales pulled the truck over. He discovered that McKnight
was the driver. And Gonzales recognized the passenger as
someone who had used methamphetamine "at some point in
the past," but he wasn't sure how recently.
¶12
During the traffic stop, Gonzales asked Sergeant Courtland
Folks of the Moffat County Sheriff's Office to respond
with his drug-detection dog, Kilo, who had been trained to
detect the odors of marijuana, methamphetamine, cocaine,
heroin, and ecstasy. If Kilo detects the scent of any one of
those substances, he should alert. And he exhibits the same
alert for all five drugs.
¶13
Within five minutes of the stop, Kilo was on the job. As
Folks walked Kilo around McKnight's truck, Folks asked
McKnight if he had "any narcotics on him." McKnight
said no. Kilo quickly "alerted" on the driver's
door beneath the driver's open window. This means that
Kilo engaged in a rapid sniffing pattern and behaved in a
manner suggesting the presence of one of the substances on
which he had been trained. According to Folks, Kilo then
"put his nose on the driver's door, back to the door
handle, did a purge, which means he cleared his nose, took
another deep breath and immediately started giving a trained
indication, which was barking."
¶14
The officers then ordered McKnight and the passenger to exit
the truck. After they complied, the officers patted them down
and found nothing on them. The officers then searched the
truck by hand. In a storage compartment under the rear seat,
they found a pipe containing suspected methamphetamine
residue.
¶15
Before trial, the defense moved to suppress the pipe, arguing
that it was the fruit of an unconstitutional search.
Specifically, McKnight argued that because marijuana is legal
in Colorado and Kilo was trained to detect marijuana,
Kilo's sniff was a search that required particularized
suspicion of criminal activity before Kilo could be deployed,
and there was no such suspicion on these facts. Moreover, he
contended that Kilo's alert did not provide probable
cause for a full-blown, human search of the truck. Through
counsel, McKnight grounded his arguments in the search and
seizure clauses of both the United States and Colorado
Constitutions.
¶16
After a hearing, the trial court denied the motion to
suppress. In relevant part, the trial court noted that the
possession of marijuana remains illegal under many
circumstances in Colorado and is categorically illegal under
federal law. Without explicitly stating as much, the trial
court seemed to reason that a sniff by a dog trained to
detect marijuana does not constitute a search. And even if
Kilo's sniff was a search, the trial court went on to
conclude that there was reasonable suspicion of criminal
activity supporting the search. With ample record support,
the court also concluded that Kilo reliably sniffs out the
drugs on which he's been trained. The trial court did not
address whether there was probable cause for the
officers' hand search of the truck.
¶17
A jury later convicted McKnight of possession of a controlled
substance and possession of drug paraphernalia.
¶18
McKnight appealed. In three separate but partially
overlapping opinions, the court of appeals unanimously agreed
that the trial court erred in denying McKnight's motion
to suppress the pipe and that the error was not harmless.
Therefore, the division reversed McKnight's convictions.
• Judge Dailey, writing for himself and Judge Berger,
agreed with McKnight that, under the Colorado Constitution
after the enactment of Amendment 64, Kilo's sniff was a
search requiring reasonable suspicion of criminal activity.
McKnight, ¶ 18 ("Because a dog sniff of a
vehicle could infringe upon a legitimate expectation of
privacy solely under state law, that dog sniff should now be
considered a 'search' for purposes of article II
section 7 of the state constitution where the occupants are
twenty-one years or older."). Judge Dailey further
determined that the reasonable suspicion standard should
govern, and he concluded that the totality of the
circumstances did not give the police reasonable suspicion
that McKnight had engaged in criminal activity. Id.
at ¶¶ 19-20, 22-24.
• Judge Jones, writing for himself and Judge Berger,
agreed with McKnight that Kilo's alert, even in
combination with other circumstances, did not give the police
probable cause to conduct a warrantless hand search of
McKnight's truck. Id. at ¶¶ 49-54
(Jones, J., specially concurring). In doing so, Judge Jones
sidestepped the issue of whether Kilo's sniff now
constitutes a search under state law. Id. at ¶
37.
• Judge Berger, writing for himself, explained how a
person could have an enforceable expectation of privacy in
the possession of marijuana under state law, even in the face
of a federal prohibition. First, he noted that Colorado
courts must give effect to Colorado voters' enactment of
Amendment 64. Id. at ¶ 29 (Berger, J.,
specially concurring). Second, he observed that the People
have not argued that Amendment 64 is preempted by federal
law. Id. Finally, he concluded that when Amendment
64 legalized possession of up to one ounce of marijuana for
personal use by persons twenty-one years of age or older, it
also limited police authority to enforce the federal
prohibition. Id. at ¶ 31.
¶19
The People filed a petition for a writ of certiorari, and we
agreed to review the case.[1]
II.
Analysis
¶20
After identifying the standard of review, we examine the
parallel evolution of federal and state jurisprudence
concerning police use of drug-detection dogs. We review
long-standing law reasoning that a sniff is not a search
because an individual has no legitimate expectation of
privacy as to contraband. But after the passage of Amendment
64, possession of an ounce or less of marijuana by someone
twenty-one or older is legal, and thus, marijuana is no
longer always "contraband" under state law. Because
Kilo's sniff could detect lawful activity, we conclude
his sniff was a search under the Colorado Constitution. We
then consider what level of suspicion would justify deploying
such a dog to sniff a vehicle, ultimately concluding that,
because the sniff is a search, there must be probable cause
to believe a vehicle contains illegal narcotics under state
law before deploying a drug-detection dog trained to alert to
marijuana. We conclude that, under the totality of the
circumstances, there was no probable cause justifying the use
of Kilo to sniff McKnight's truck or the subsequent hand
search of the truck, and, exclusion of the pipe is the
appropriate remedy for this violation of the Colorado
Constitution.
A.
Standard of Review
¶21
When reviewing a suppression order, we defer to the trial
court's factual findings if the record supports them, but
we review de novo the court's legal conclusions.
Grassi v. People, 2014 CO 12, ¶ 11, 320 P.3d
332, 335. So, we address the constitutionality of Kilo's
sniff and the subsequent hand search of the truck de novo.
B.
Federal Law Governing Searches and Drug-Detection
Dogs
¶22
The Fourth Amendment to the United States Constitution
states:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
It
"protects people, not places" from unreasonable
governmental searches and seizures. Katz v. United
States, 389 U.S. 347, 351 (1967); see also US
Const amend IV A search in the constitutional sense occurs
"when the government violates a subjective expectation
of privacy that society recognizes as reasonable"
Kyllo v United States, 533 U.S. 27, 33 (2001)
(citing Katz, 389 U.S. at 361 (Harlan, J,
concurring)).
¶23
"Warrantless searches are presumptively
unreasonable," and thus unconstitutional, unless an
exception to the warrant requirement exists. United
States v. Karo, 468 U.S. 705, 717 (1984). Courts measure
the constitutionality of a search (either pursuant to a
warrant or warrantless) at the time a search is performed.
The Fourth Amendment does not favor post hoc justifications
based on what was found during a search. See, e.g.,
People v. Sotelo, 2014 CO 74, 336 P.3d 188
("[C]ourts may not use the benefit of hindsight in
evaluating application of the Fourth Amendment.");
see also California v. Acevedo, 500 U.S. 565, 599
(1991) (Stevens, J., dissenting) ("Neither evidence
uncovered in the course of a search nor the scope of the
search conducted can be used to provide post hoc
justification for a search unsupported by probable cause at
its inception."); United States v. Montoya de
Hernandez, 473 U.S. 531, 559 (1985) (Brennan, J.,
dissenting) ("[P]ost hoc rationalizations have no place
in our Fourth Amendment jurisprudence, which demands that we
'prevent hindsight from coloring the evaluation of the
reasonableness of a search or seizure.'" (quoting
United States v. Martinez-Fuerta, 428 U.S. 543, 565
(1976))).
¶24
A warrantless search may be constitutional if there was
probable cause to believe the place or item to be searched
contained contraband or evidence of a crime, and the
circumstances met an exception to the warrant requirement.
One such exception is the automobile exception. Beginning
with Carroll v. United States, the Supreme Court has
reasoned that automobiles warrant a lesser degree of privacy
than that afforded to homes because of a vehicle's
"ready" mobility, the existing, pervasive
government regulation of cars, and the low probability that a
car is used to store personal effects. See 267 U.S.
132, 153 (1925) (reasoning that there is "a necessary
difference between a search of a store, dwelling house, or
other structure . . . [where] a proper official warrant
readily may be obtained and a search of a ship, motor boat,
wagon, or automobile . . . where it is not practicable to
secure a warrant, because the vehicle can be quickly
moved"). Nearly a century later, the law remains the
same: If an officer has lawfully stopped a vehicle, and has
probable cause to believe the vehicle contains evidence of a
crime, then the officer may conduct a search of the car
without first obtaining a warrant. Collins v.
Virginia, 138 S.Ct. 1663, 1670 (2018).
¶25
As the Supreme Court continued to embrace and refine the
automobile exception, drug-detection dogs scampered on to the
scene. United States v. Place marked the Supreme
Court's first foray into this area of the law. 462 U.S.
696 (1983). In Place, two law enforcement officers
grew suspicious that Place might be carrying narcotics after
observing him at Miami International Airport. Id. at
698. The officers remained suspicious after talking with the
defendant, though they ultimately decided not to search his
luggage. Id. The officers looked closely at the
luggage tags on the defendant's checked bags and noticed
discrepancies between the two addresses and the phone number
the defendant gave the airline. Id. The officers
notified law enforcement agents in New York of the
defendant's impending arrival. Id. Two Drug
Enforcement Administration agents contacted the defendant
when he landed, informed the defendant that they believed he
may be transporting illegal narcotics, and ultimately seized
his luggage in order to subject it to a sniff from a
drug-detection dog. Id. at 698-99.
¶26
Though Place turned on whether the seizure of the
defendant's luggage without probable cause violated the
Fourth Amendment, the Court discussed the use of
drug-detection dogs at airports to sniff luggage suspected of
containing illegal narcotics. See id. at 707. The
Court reasoned that exposing "temporarily detain[ed]
personal luggage" to a dog trained to detect narcotics
wasn't a search under the Fourth Amendment. Id.
at 697-98. The sniff is "sui generis," stated the
Court, because it is less intrusive than other search
techniques and it can only reveal the "presence or
absence of narcotics, a contraband item." Id.
at 707. The Court's rationale thus hinged on two notions:
(1) A dog sniff is a minimally intrusive tactic (2) that can
only reveal whether or not contraband is present in the
luggage. Beyond that, the sniff reveals nothing. Despite the
narrow circumstances in which the Court made these
statements, they have formed the foundation for much federal
(and state) jurisprudence on dog sniffs.
¶27
The Supreme Court relied on this reasoning in Illinois v.
Caballes to conclude that "the use of a
well-trained narcotics-detection dog-one that 'does not
expose noncontraband items that otherwise would remain hidden
from public view'-during a lawful traffic stop, generally
does not implicate legitimate privacy interests." 543
U.S. 405, 409 (2005) (internal citation omitted) (quoting
Place, 462 U.S. at 707). In Caballes, an
officer led a drug-detection dog around a vehicle that was
lawfully stopped for speeding. Id. at 406. The dog
alerted at the trunk, leading to a search that revealed
marijuana. Id. Looking back to Place, the
Court rejected the claim that the dog sniff was
unconstitutional because there was no reasonable suspicion
that the defendant possessed narcotics when he was initially
stopped. Id. at 408-09. Notably, the Court
didn't focus on how the officers in Place had
already grown suspicious that the defendant was engaged in
illegal narcotics activity before stopping and contacting the
defendant. Compare id., with Place, 462 U.S. at
698-700. Instead, the Court reasoned that reasonable
suspicion wasn't necessary to justify the dog sniff
because it could only detect contraband, and "any
interest in possessing contraband cannot be deemed
'legitimate,' . . . thus, governmental conduct that
only reveals the possession of contraband
'compromises no legitimate privacy interest.'"
Id. at 408 (quoting United States v.
Jacobsen, 466 U.S. 109, 123 (1984)).[2]
C.
Colorado Law: Pre-Amendment 64
¶28
Our search and seizure jurisprudence took a different path.
In decades past, our opinions demonstrated a willingness to
interpret the state constitution to afford broader
protections than its federal counterpart. Yet, in recent
years, we have moved away from this interpretive
independence.
¶29
Article II, section 7 of the Colorado Constitution states:
The people shall be secure in their persons, papers, homes
and effects, from unreasonable searches and seizures; and no
warrant to search any place or seize any person or things
shall issue without describing the place to be searched, or
the person or thing to be seized, as near as may be, nor
without probable cause, supported by oath or affirmation
reduced to writing.
¶30
In Charnes v. DiGiacomo, this court first charted
its own course in interpreting article II, section 7 to
afford broader protections than the Fourth Amendment. 612
P.2d 1117 (Colo. 1980). Charnes concerned a
taxpayer's challenge to a subpoena issued to his bank by
the Colorado Department of Revenue seeking the taxpayer's
financial records. Id. at 1119. Applying United
States v. Miller, this court concluded that the Fourth
Amendment did not shield the taxpayer's financial records
from government seizure because the taxpayer could not claim
any expectation of privacy in the information he shared with
his bank through financial transactions. Id. at 1120
(citing 425 U.S. 435 (1976)). But, the analysis did not end
there. We then looked to article II, section 7 and concluded
that the analytical framework announced in
Katz-whether the defendant had a subjective
expectation of privacy in his bank records that society was
prepared to recognize as reasonable-was also the framework to
be applied under the Colorado Constitution. See id.
at 1120-21. Noting that Miller "does not
determine the scope of protection provided to individuals in
Colorado by the constitution of this state," we
concluded that, under the Colorado Constitution, bank
depositors have a reasonable expectation of privacy in
records concerning their financial transactions held at banks
in Colorado. Id. Charnes was only the first in a
series of cases holding that article II, section 7 provides
greater privacy protections than the Fourth Amendment.
See, e.g., People v. Sporleder, 666 P.2d
135, 143-44 (Colo. 1983) (rejecting the U.S. Supreme
Court's reasoning in Smith v. Maryland, 442 U.S.
735 (1979), to hold that the installation and use of a pen
register constitutes a search under state law); People v.
Corr, 682 P.2d 20, 27-28 (Colo. 1984) (applying the
reasoning of Sporleder to conclude that a warrant is
required to obtain telephone toll records); People v.
Oates, 698 P.2d 811, 815-16 (Colo. 1985) (rejecting the
reasoning of Karo, 468 U.S. 705, and holding that
the installation and presence of a tracking device in
purchased commercial goods constitutes a search under the
Colorado Constitution).
¶31
In People v. Unruh, we considered the constitutional
permissibility of a dog sniff of a locked safe. 713 P.2d 370,
378-79 (Colo. 1986), abrogated by People v. Esparza,
2012 CO 22, 272 P.3d 367. We concluded that, despite the less
intrusive nature of a dog sniff, it was a search because the
defendant had a reasonable expectation of privacy in the
locked safe. Id. In coming to this conclusion, we
distinguished Place, noting that the sniff of a
person's luggage at an airport was not deemed a search
because the person has "no reasonable expectation of
privacy from an investigative technique as non-intrusive as a
dog sniff" at the airport. Id. at 378. We then
had to decide whether a warrant was necessary to deploy the
drug-detection dog, or whether "something less than
probable cause" could justify the sniff. Id. We
looked to Terry v. Ohio, 392 U.S. 1, 30-31 (1968),
where the U.S. Supreme Court held that an officer may conduct
a stop if he has reasonable suspicion criminal activity is
occurring. We analogized an exploratory dog sniff to the
brief investigatory stops at issue in Terry, and we
concluded that the proper "balance between governmental
and individual interests in this case" necessitated that
there be reasonable suspicion to justify the exploratory
sniff. Unruh, 713 P.2d at 379. Our reasoning rested
primarily on two principles: (1) the defendant had a
reasonable expectation of privacy in the item searched (his
locked safe), and (2) a dog sniff, though a search, was a
less intrusive search than a traditional search by hand.
Id. at 377-79.
¶32
In People v. Haley, we applied the reasoning of
Unruh to conclude that a dog sniff resulting from an
impermissibly prolonged traffic stop violated the protections
of article II, section 7.[3] 41 P.3d 666, 673-74, 676-77 (Colo.
2001), abrogated by Esparza, 2012 CO 22, 272 P.3d
367. This was so because the defendants had "a privacy
interest in their persons and vehicle being free from
unreasonable governmental intrusion, and the drug
investigation following the traffic stop in this case
required reasonable suspicion for the dog sniff search to
proceed." Id. at 674. We acknowledged that
"automobiles enjoy a lesser expectation of privacy in
our society than private homes," but we also noted that
"citizens have a reasonable expectation of privacy from
search and seizure in their cars and in their persons as they
travel the state's roads." Id. at 672
(citing New York v. Class, 475 U.S. 106, 112 (1986)
("A citizen does not surrender all the protections of
the Fourth Amendment by entering an automobile.")).
¶33
However, in People v. Esparza, we reviewed our prior
precedent on dog sniffs and, in doing so, narrowed its scope.
2012 CO 22, 272 P.3d 367. We concluded that, "[d]espite
our broad language purporting to address dog sniffs in
general," our earlier decisions suggested a "more
limited rule" was appropriate. Id. at ¶ 9,
272 P.3d at 369. Specifically, we noted that our dog-sniff
jurisprudence has "been concerned with the nature of the
particular container being pursued and any official conduct
making it possible for a trained drug dog to sniff the
container in the first place." Id. at ¶ 8,
272 P.3d at 369. Ultimately, we held "that an interest
in possessing contraband cannot be deemed legitimate under
the state constitution any more than under the federal
constitution, and that official conduct failing to compromise
any legitimate interest in privacy cannot be deemed a search
under the state constitution any more than under the federal
constitution." Id. at ¶ 2, 272 P.3d at
368. Like the U.S. Supreme Court, we based our holding in
part on the purportedly binary nature of the dog's sniff.
The sniff, we reasoned, could only communicate either the
presence or absence of contraband. Id. at ¶ 11,
272 P.3d at 370.
¶34
Esparza thus represented a kind of return to the
federal fold. The state of the law was thus: (1) under the
automobile exception, an officer may search a car without a
warrant if that officer has probable cause to believe there
is contraband in the car; (2) an officer doesn't need
reasonable suspicion to walk a drug-detection dog around a
lawfully stopped vehicle because the alert indicates only the
presence of contraband, and people do not have a legitimate
expectation of privacy in contraband; and (3) an alert from a
drug-detection dog could provide probable cause for a
subsequent hand search of the car. See id. at
¶¶ 10-12, 272 P.3d at 370; see also People v.
Mason, 2013 CO 32, ¶ 10, 310 P.3d 1003, 1005
("It is now settled that walking a trained narcotics
detection dog around a car that has not been unlawfully
stopped or detained does not implicate the protections of
either the Fourth Amendment or Article II, section 7 of the
state constitution."). And so it has been for the better
part of a decade.
D.
Colorado Law: Post-Amendment 64
¶35
Has the passage of Amendment 64 altered this settled terrain?
We began to explore this question in our recent decisions in
People v. Zuniga, 2016 CO 52, 372 P.3d 1052, and
People v. Cox, 2017 CO 8, 401 P.3d 509. In both
Zuniga and Cox, we found probable cause
supporting an automobile search based on a confluence of
factors, including the positive alert of a drug-detection dog
that was trained to alert to marijuana. Yet, in
Zuniga, we concluded that the alert was legally
ambiguous because a drug-detection dog can't distinguish
legal marijuana from illegal marijuana, or legal marijuana
from illegal narcotics. See ¶¶ 18-23, 372
P.3d at 1057-59. Despite this ambiguity, we held that the
alert was still relevant to the overall probable cause
analysis. Id. Likewise in Cox, we concluded
that the positive alert of a drug-detection dog was one
factor, among many, supporting a finding of probable cause to
search a stopped vehicle. ¶ 17, 401 P.3d at 512-13.
¶36
In both Zuniga and Cox, we declined to
address (1) whether the sniff of a dog trained to detect
marijuana was a search, and (2) whether a positive alert from
a dog trained to detect marijuana alone could establish
probable cause. Significantly however, these two recent
decisions suggest the answer to the latter question is no. We
acknowledged that, with the legalization of small amounts of
marijuana, a dog's alert doesn't provide a yes-or-no
answer to the question of whether illegal narcotics are
present in a vehicle. At most, the alert could be
"suggestive of criminality," but not determinative
on its own. See Zuniga, ¶ 23, 372 P.3d at 1059.
Had the alert alone sufficed, there would have been no need
to evaluate other circumstances in either Zuniga or
Cox. Yet, we did just that. Thus, in finding that an
alert from a drug-detection dog trained to find marijuana is
ambiguous, Zuniga and Cox represent a
tentative step away from the federal approach. See,
e.g., Harris, 568 U.S. at 240, 247-48
(concluding that an alert from a well-trained, reliable
drug-detection dog could supply probable cause to search a
vehicle).
¶37
To be sure, marijuana remains illegal under federal law. The
Federal Controlled Substances Act prohibits the possession of
marijuana for nearly all uses. 21 U.S.C. § 812(c)(10)
(2012); 21 U.S.C. § 812(b)(1)(A)-(C) (2012); 21 U.S.C.
§ 844(a) (2012). "There is no exception for
marijuana use for medical purposes, nor is there an exception
for use in compliance with state law." People v.
Crouse, 2017 CO 5, ¶ 11, 388 P.3d 39, 42 (citing
Gonzales v. Raich, 545 U.S. 1, 14 (2005)).
Consequently, marijuana remains contraband under federal law
and, arguably, Kilo's sniff was not a search under the
U.S. Supreme Court's interpretation of the Fourth
Amendment in Caballes.[4] See McKnight, ¶ 18
n.4. This, however, leaves unanswered the question of whether
Kilo's sniff was nonetheless a search under the
corresponding provisions of our state
constitution.[5]
¶38
We have opined that, despite the substantial similarity
between article II, section 7 and the Fourth Amendment,
"we are not bound by the United States Supreme
Court's interpretation of the Fourth Amendment when
determining the scope of state constitutional
protections." Sporleder, 666 P.2d at 140.
"There is no reason to think, as an interpretive matter,
that constitutional guarantees of independent sovereigns,
even guarantees with the same or similar words, must be
construed in the same way." Jeffrey S. Sutton, 51
Imperfect Solutions: States and the Making of American
Constitutional Law 174 (2018); see also Thompson v.
Dallas City Attorney's Office, 913 F.3d 464, 471
(5th Cir. 2019) ("Our Nation boasts not one Constitution
but 51, meaning American constitutionalism concerns far more
than what began in Philadelphia 232 years ago." (citing
Sutton, supra)). Indeed, the U.S. Supreme Court has
a long tradition of encouraging us to scrutinize our own
state constitutional texts, declaring: "It is
fundamental that state courts be left free and unfettered by
us in interpreting their state constitutions."
Minnesota v. Nat'l Tea Co., 309 U.S. 551, 557
(1940); see also Cooper v. California, 386 U.S. 58,
62 (1967) ("Our holding, of course, does not affect the
State's power to impose higher standards on searches and
seizures than required by the Federal Constitution if it
chooses to do so."); Massachusetts v. Upton,
466 U.S. 727, 739 (1984) (Stevens, J., concurring) ("The
States in our federal system . . . remain the primary
guardian of the liberty of the people."); California
v. Greenwood, 486 U.S. 35, 43 (1988) ("Individual
States may surely construe their own constitutions as
imposing more stringent constraints on police conduct than
does the Federal Constitution."). Thus, state courts
need not interpret state constitutional provisions "as
mere mirrors of federal protections." Developments
in the Law-The Interpretation of State Constitutional
Rights, 95 Harv. L. Rev. 1324, 1356 (1982); see
also William J. Brennan, Jr., State Constitutions
and the Protection of Individual Rights, 90 Harv. L.
Rev. 489, 491 (1977) ("State constitutions, too, are a
font of individual liberties, their protections often
extending beyond those required by the Supreme Court's
interpretation of federal law.").
¶39
And, because the protections afforded by both article II,
section 7 and the Fourth Amendment are "highly
generalized," we discern no reason to reflexively assume
that there must be "just one meaning over a range of
differently situated sovereigns." Sutton,
supra, at 174. Criminal law has traditionally been
considered best left to the expertise of the state courts as
the vast majority of criminal prosecutions take place in
state, rather than federal, court. See Shirley S.
Abrahamson, Criminal Law and State Constitutions: The
Emergence of State Constitutional Law, 63 Tex. L. Rev.
1141, 1150 (1985) ("Criminal law is an area of
traditional concern for state judges. It is an area of law in
which state judges have special experience and
expertise."); see also Tafflin v. Levitt, 493
U.S. 455, 465 (1990) (reasoning, in part, that state courts
can exercise concurrent jurisdiction over civil RICO cases
because these cases "involve asserted violations of
state law . . . over which state courts presumably have
greater expertise").
¶40
Moreover, we are confronted with a local development that
further suggests resolution under our state constitution is
proper. "State courts . . . have a freer hand in doing
something the Supreme Court cannot: allowing local conditions
and traditions to affect their interpretation of a
constitutional guarantee and the remedies imposed to
implement that guarantee." Sutton, supra, at
17. When there are "general institutional differences
between the state government and its federal
counterpart" or "distinctive state-specific
factors," including the existence of state
constitutional provisions that provide rights not guaranteed
by the federal constitution, interpreting the state
constitution in a manner that departs from federal
courts' interpretations of similar federal provisions not
only makes sense, it may be the most logical option. See
Developments in the Law, supra, at 1359-60.
¶41
Here, we have a state constitutional right not guaranteed by
the federal constitution. Amendment 64 provides that it is
"not unlawful and shall not be an offense under Colorado
law" for a person who is at least twenty-one years of
age to possess one ounce or less of marijuana. Colo. Const.
art. XVIII, § 16(3); see also Zuniga, ¶
18, 372 P.3d at 1057. Amendment 64 was enacted through the
initiative process in 2012, and its passage represents
voters' intent to legalize marijuana use, possession, and
growth under certain circumstances. Colo. Const. art. XVIII,
§ 16(1)(a) (designating the purpose of Amendment 64 as
"the people of the state of Colorado find and declare
that the use of marijuana should be legal for persons
twenty-one years of age or older and taxed in a manner
similar to alcohol"). "Our goal in interpreting a
citizen initiative is to 'give effect to the
electorate's intent.'" People v. Lente,
2017 CO 74, ¶ 16, 406 P.3d 829, 832 (quoting Colo.
Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12,
¶ 20, 269 P.3d 1248, 1253); see also Commonwealth v.
Craan, 13 N.E.3d 569, 577-78 (Mass. 2014) (discussing
the importance of implementing the people's intent when
examining the impact of a citizen initiative decriminalizing
possession of small amounts of marijuana under state law on
the probable cause analysis). Tellingly, Amendment 64 did
more than just legalize personal marijuana use, possession,
and growth. The initiative also created a marijuana industry.
See Colo. Const. art. XVIII, § 16(4). And,
Amendment 64 reflects a desire to protect "individual
privacy" by specifying that the Department of Revenue
"shall not require" individual consumers to provide
any information beyond a government-issued form of ID for age
verification when purchasing marijuana at a retail marijuana
store. Id. § 16(5)(c).
¶42
Marijuana is not only decriminalized in Colorado, it is
legalized, regulated, and taxed. Marijuana is now treated
like guns, alcohol, and tobacco-while possession of these
items is lawful under some circumstances, it remains unlawful
under others. See, e.g., § 18-12-103, C.R.S.
(2018) (making it unlawful to knowingly possess a firearm
without its serial number or other identifying mark); §
18-13-122(3)(a), C.R.S. (2018) (making it unlawful for
persons under twenty-one to possess or consume alcohol);
§ 18-13-121, C.R.S. (2018) (making it unlawful to sell
tobacco products to persons under eighteen). Although
possession of guns, alcohol, and tobacco can be unlawful,
persons still maintain an expectation of privacy in lawfully
using or consuming those items. The same now goes for
marijuana: In legalizing ...