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
OPINION
HOOD
JUSTICE
¶1
Marijuana isn't meth. But drug-detection dog Talu
can't tell the difference. So when Talu alerted to the
driver and passenger side doors of Amanda Gadberry's
truck, the officers didn't 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
Gadberry's situation and McKnight's. Thus, Talu's
wide-ranging, though outdated, training demanded probable
cause before the drug-detection dog's 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
didn't have it. Accordingly, we affirm the trial
court's 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 wasn't 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
Stuckenschneider's observation regarding the front plate,
Briggs pulled the Dodge over. In the driver's 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 Gadberry's 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 didn't have reasonable suspicion to initiate the
stop; (2) the stop was unreasonably prolonged; (3) Talu's
sniff was unlawful because Talu was trained to alert on both
marijuana, a legal substance, and illegal substances, such as
methamphetamine; and (4) Talu's sniff was unreliable. The
trial court denied claims one and two. It held that the
"fellow officer rule" imputed
Stuckenschneider's 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 for Briggs to obtain information, view the vehicle,
and run the plates. As a result, the court concluded that the
officers didn't unreasonably delay Gadberry.
¶7
The trial court did, however, grant Gadberry's motion to
suppress based on claim three. It followed the court of
appeals' decision in People v. McKnight, 2017
COA 93, __P.3d__, and found that a sniff is a search when a
drug-detection dog can alert to both illegal and legal
substances. Here, no one presented any evidence suggesting
that the vehicle had any illegal substances in it or that
Gadberry was aware of all the belongings in the car,
especially since multiple people had driven the car in the
few days before the stop. Therefore, the trial court reasoned
that, under McKnight, the officers on the scene
needed reasonable suspicion that Gadberry had been involved
in criminal activity to initiate Talu's sniff. Because
the officers here lacked reasonable suspicion to deploy Talu,
the court granted the motion to suppress and didn't reach
claim four.
¶8
The People filed the interlocutory appeal at issue here,
raising the following question: Did the trial court err in
finding that a free air sniff of the Defendant's vehicle
by a dog trained in marijuana and illegal narcotics was a
search, which required a showing of reasonable suspicion?
II.
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