Colorado Court of Appeals Says Drug Addict Dog Alerting on Now Legal Grass Cannot Create Likely Cause for Research
of no-dog, -no matter-where-it-is-located, -should-have-this-power department
“Probable cause on all fours.” This is the cop nickname for drug dogs, who must do nothing more than something visible to the officer / trainer to allow officers to conduct warrantless searches. For years, drug dogs and the “smell of marijuana” have allowed cops and dogs to follow their noses in all manner of otherwise unconstitutional searches, much to the delight of law enforcement and their officials. desire to make easy busts and grab money.
Then came the creeping threat of legalized marijuana, which meant cops in some states could no longer assume the smell of marijuana was suspicious enough to convert pretextual stops into full-blown searches. These legal changes also promised to put their dogs into bankruptcy, as they were trained to detect weeds as well as other illicit substances. With marijuana no longer necessarily illicit, dogs have become more of a problem than a solution. As far too many law enforcement officials have argued, legalization meant that literal the deaths of drug-addicted dogs, rather than just a speed bump on the warrantless search route.
Marijuana has been legal in Colorado since 2012. And yet the cops still use drug dogs who obviously can’t indicate via an “alert” if they’ve detected now-legal weed or something actually still. illegal under state law. This inability to tell officers “hey, I detected a legal substance” is now causing problems with drug conviction and their underlying research using drug dogs.
Colorado Court of Appeals Ruled [PDF] that a drug dog alert no longer generates the requisite number of probable causes necessary for cops to engage in a deeper and broader search of people and their property. (via FourthAmendment.com)
Here’s how it started:
In 2017, anti-drug task force investigators were following a suspected “high-level” drug trafficker when he visited Restrepo. After the drug trafficker left, some members of the task force arrested him; they found guns and a quarter pound of methamphetamine in his vehicle. At one point, the drug dealer told officers he had gone to Restrepo to sell him methamphetamine, as a customer.
Meanwhile, other members of the task force remained watching Restrepo’s house. When Restrepo left in his car, they followed him for a few hours. Meanwhile, the task force “decided to bring traffic to a halt.” After Restrepo passed a stop sign, the task force asked Jeremy Sheldon, a uniformed officer with the Colorado Springs Police Department’s canine unit, to stop Restrepo’s car. During the stop, Constable Sheldon patted Restrepo and found $ 1,200 in Restrepo’s pocket. He then ordered his dog to sniff the drugs from Restrepo’s vehicle. The dog, trained to warn about marijuana as well as other controlled substances, alerted Restrepo’s car. Constable Sheldon then searched the vehicle and found suspected methamphetamine and drug paraphernalia in a backpack in the backseat.
The district court saw nothing wrong with this and refused to suppress the evidence. He said that the dog’s ability to too detecting illicit substances gave the cops permission to search the backpack. Indeed, the court told the cops that it was acceptable to use dogs that detected legal substances to generate a probable cause to search for illegal substances. But he decided that the sniff himself was not supported by reasonable suspicion. For some reason, he combined those two almost contradictory findings into one decision that allowed the state to keep the evidence it collected in the backpack.
The Court of Appeal says that this decision is wrong. Since marijuana is legal – and drug dogs trained to spot this scent will continue to detect it – cops need to have more to do before they introduce a drug dog into the mix. They must have a probable cause to justify deploying a drug dog to sniff contraband. It is no longer acceptable to circulate one around a stopped car or their belongings just because you have one on hand.
When a dog is trained to alert on both marijuana and illegal drug alerts, the handler does not know whether the dog is alerting to contraband or a legal amount of marijuana. See McKnight II, ¶ 35. Therefore, a sniffer dog of a dog trained to detect marijuana is an investigation under Article II, section 7; it infringes on a person’s reasonable expectations of privacy in the course of a lawful activity. Identifier. at 43,
Accordingly, there must be probable reasons to believe that a vehicle contains narcotics illegal under state law before deploying a drug detector dog trained to alert on marijuana.
There was no probable cause here. All the cops had at the time was an unverified claim from a suspected drug dealer in their custody that drugs had been sold in Restrepo. What they didn’t have was something that allowed them to turn the pretextual shutdown into full-blown research. The dog’s drug alert didn’t change anything.
The evidence seized in the backpack disappears, as does the conviction. And Colorado cops are being warned they will have to develop a probable cause before bringing in a drug dog or risking losing their evidence in the future. The probable cause is no longer crawling in Colorado.
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Filed Under: 4th amendment, colorado, drug dog, probably cause