Page 450
Interlocutory Appeal from the District Court, Mesa
County District Court Case No. 17CR2426, Honorable Valerie J.
Robison, Judge
Attorneys
for Plaintiff-Appellant: Daniel P. Rubinstein, District
Attorney, Twenty-First Judicial District Brian Conklin,
Deputy District, Attorney Grand Junction, Colorado
Attorneys for Defendant-Appellee: Megan Ring, Public
Defender, Kristin Westerhorstmann, Deputy Public Defender,
Grand Junction, Colorado
En
Banc
OPINION
JUSTICE
HOOD
Page 451
[¶1]
Marijuana isnt meth. But drug-detection dog Talu cant tell
the difference. So when Talu alerted to the driver and
passenger side doors of Amanda Gadberrys truck, the officers
didnt know whether Talu had found marijuana, which is legal
in some circumstances in Colorado, or meth, which never is.
This quandary led us in People v. McKnight, a
companion case also announced today, to hold that persons
twenty-one years of age or older have a reasonable
expectation of privacy in the possession of one ounce or less
of marijuana in Colorado, therefore requiring officers to
have probable cause that an item or area contains a drug in
violation of state law before they deploy a dog trained to
alert to marijuana. See 2019 CO 36, ¶ 7, __ P.3d __.
We see no difference between Gadberrys situation and
McKnights. Thus, Talus wide-ranging, though outdated,
training demanded probable cause before the drug-detection
dogs deployment, just as it did in McKnight .
[¶2]
In this interlocutory appeal, we therefore hold that the
officers needed probable cause to deploy Talu. They didnt
have it. Accordingly, we affirm the trial courts suppression
order.
I. Facts and Procedural History
[¶3]
While patrolling Mesa County, Deputy Stuckenschneider
observed a black Dodge pickup driving with a missing front
license plate. Stuckenschneider phoned Deputy Briggs,
alerting her to the situation. But this wasnt just any
vehicle with a missing front plate— a few days prior,
Sergeant Beagley had stopped the same car for being
incorrectly registered and for displaying invalid license
plates. Briggs knew all of this when she received the alert
from Stuckenschneider. With knowledge of the previous stop
and Stuckenschneiders observation regarding the front plate,
Briggs pulled the Dodge over. In the drivers seat, she found
Gadberry.
[¶4]
Briggs informed Gadberry that she initiated the stop because
of the missing front plate. Gadberry told Briggs that the car
indeed had a front plate and, upon inspection, Briggs found
the missing plate shoved into the grill of the Dodge,
although the car was still improperly registered. While all
of this was happening, Beagley, Handler Cheryl Yaws, and dog
Talu, who is trained to alert to methamphetamine, cocaine,
heroin, and marijuana, arrived on the scene. During the time
that it took Briggs to run Gadberrys plates, Beagley asked
Gadberry if there was any marijuana in the vehicle. She said
no.
[¶5]
Shortly thereafter, Talu sniffed around the car and alerted
to the driver and passenger doors. With the benefit of that
alert, the officers conducted a search of the car, finding a
cellophane wrapper of methamphetamine lodged inside a wallet.
Gadberry was then charged with (1) display of a fictitious
license plate, (2) possession of drug paraphernalia, and (3)
possession of a controlled substance.
[¶6]
Gadberry moved to suppress the evidence on four grounds: (1)
Briggs didnt have reasonable suspicion to initiate the stop;
(2) the stop was unreasonably prolonged; (3) Talus sniff was
unlawful because Talu was trained to alert on both marijuana,
a legal substance, and illegal substances, such as
methamphetamine; and (4) Talus sniff was unreliable. The
trial court denied claims one and two. It held that the
"fellow officer rule" imputed Stuckenschneiders
knowledge of the missing front plate and improper
registration to Briggs, therefore justifying the stop.
Additionally, it found that the stop only lasted long enough
...