Police must have probable cause for a search other than the simple alert of a K-9 that is trained to detect the odor of marijuana, the Colorado Supreme Court decided.
In Colorado, marijuana is legal in small quantities for people 21 and older; thus, a dog trained to detect it, could be alerting on a legal activity when it is deployed for an air-sniff, the court's May 20 ruling held.
The decision will have only limited impact in the 7th Judicial District, however. Here, new police K-9s are trained and certified in narcotics detection, not to detect the odor of pot, and the one dog with such training is slated to be retired later this year.
That dog, Oxx, now works for the Delta County Sheriff's Office, along with a second, younger dog, Roo, which is not trained to detect marijuana.
"The plan is to retire Oxx this summer or fall and then bring Roo in, so we'll have a few months that we'll have to work through this decision," Delta County Sheriff Mark Taylor said.
"Just like anything we do, it's going to take more investigative work than in the past. A dog trained to alert to marijuana just can't be used to establish probable cause that a crime has been committed."
That means deputies who request the K-9 will have to establish other probable cause for a search, he said.
The May 20 ruling upheld a court of appeals decision that suppressed the evidence supporting the drug convictions of Kevin McKnight.
According to the ruling, in 2015, Craig police saw McKnight's truck parked the wrong way in a one-way alley near an apartment. An officer tailed the truck a few blocks to another residence where drugs had been discovered a few months before, then continued to tail it, pulling over the vehicle when it failed to signal. The officer believed McKnight's passenger was someone who had previously used meth and requested the Moffat County Sheriff's Office K-9, Kilo, for an air-sniff.
The dog signaled an alert and police discovered a pipe with methamphetamine residue in a storage compartment in the truck.
McKnight's defense team later attempted to have the pipe suppressed, arguing it was obtained through an unconstitutional search -- because marijuana is legal and the dog was trained to alert on that, not just on narcotics.
Even a hint of the weed could trigger the same response from the dog as methamphetamine, the May 20 ruling says.
"And that's where things get tricky," the majority justices wrote in the decision. "After all, the possession of an ounce or less of marijuana by someone 21 or older is legal in Colorado, following the passage of Amendment 64, 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."
An air-sniff itself "arguably" intrudes on reasonable expectation of privacy; therefore, that intrusion has to be justified by some degree of suspicion that a crime has occurred, the ruling also indicates.
The Colorado Attorney General's Office contended that marijuana is still illegal federally and, in many circumstances, also illegal at the state level, therefore, Kilo's sniff was constitutional and justified.
However, the majority justices held that a sniff from a drug-detection do trained to alert to marijuana is, in fact, a search, because it can also detect lawful activity -- an ounce or less of marijuana by a person old enough to possess it.
Further, there must be probable cause that an item or area has an illegal drug before a K-9 trained to detect marijuana can be deployed for an air-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," the majority opinion says, in affirming the court of appeals' earlier decision to vacate McKnight's conviction.
"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," the ruling states.
The ruling will not affect the Montrose County Sheriff's Office K-9 program, or a similar one in place at the Delta Police Department. The agencies' dogs, respectively, Tigo and Raico, are not trained to alert on marijuana.
"Tigo is not marijuana-certified," Montrose County Sheriff Gene Lillard said. "He is strictly narcotics -- cocaine, methamphetamine, heroin. He is not certified in marijuana detection."
The same is true for Raico, DPD spokeswoman Jamie Head said.
"We deliberately and intentionally chose a dog that was not trained for marijuana. That was part of our prerequisite in looking for a K-9," she said.
Tigo and Raico are also trained in tracking.
"He is a narcotics dog and also a tracking dog. We can use him for people who are lost," Lillard said of Tigo.
Raico has already been used to find and apprehend suspects.
"He is triple-trained. He does the free-air sniff in detection of narcotics and illegal substances. He is not trained to sniff out marijuana. He is tracking-trained and he is bite-takedown trained," Head said.
Like DPD, the MCSO deliberately sought a dog not trained in marijuana detection.
"It would not do us much good to have a marijuana-sniffing dog, except in the schools (for locker sniffs)," Lillard said.