To Sniff Out Pot With Dogs, Police Need Probable Cause First in Colorado

by | May 22, 2019 AT 7:35 AM
A police dog sniffs a person waiting on a train platform.
(MCT/Chicago Tribune/Zbigniew Bzdak)

By Elise Schmelzer

The Colorado Supreme Court greatly diminished the role of police dogs trained to detect marijuana with a ruling Monday that created another divide between how state and federal law enforcement can investigate pot.

In a 4-3 ruling, the Colorado Supreme Court ruled that, under the state constitution, a dog trained to alert to marijuana cannot be used before an officer establishes probable cause that a crime had been committed.

For decades, police dogs were trained to alert their handlers to the presence of pot. But since Coloradans voted in 2012 to legalize recreational possession of small amounts of the drug, the dogs' sniff tests have been controversial because they can alert even if a person has a legal amount of marijuana.

Monday's ruling effectively renders the dogs trained to detect pot useless in most situations, said Sam Kamin, a law professor at the University of Denver who studies marijuana law and policy. Previously, the dogs' sniff tests were used to create probable cause for a search. Now, there has to be enough evidence to authorize a search before a marijuana-trained dog can be used, making the dogs' sniff tests redundant.

"The dog's sniff arguably intrudes on a person's reasonable expectation of privacy in lawful activity," Supreme Court Justice William Hood wrote in the majority's decision. "If so, that intrusion must be justified by some degree of particularized suspicion of criminal activity."

Officers using such K-9s are now subject to the same standards used for other searches of property. Law enforcement using pot-trained dogs either have to have a warrant before the sniff test or be in one of a handful of situations outlined by state law that allows police to complete a search without a warrant.

Even before the court's decision Monday, Colorado law enforcement agencies had begun retiring and phasing out marijuana-trained dogs in favor of K-9s not trained to detect that drug. Less than 20 percent of the approximately 120 police dogs in Colorado are still trained to detect marijuana.

Brian Laas, an Arvada police officer and president of the Colorado Police K-9 Association, said Monday morning that he was scheduled to meet with the Colorado Attorney General's Office that afternoon to discuss the repercussions of the decision. He did not return calls Monday evening.

The Colorado Attorney General's Office was reviewing the decision Monday afternoon.

"We will work with our law enforcement partners in understanding this decision's possible implications," Attorney General Phil Weiser said in a statement.

The decision doesn't seem out of line with how other state courts treat drug-dog sniff tests, said David Ferland, executive director of the United States Police Canine Association.

"What Colorado is doing does not surprise me," Ferland said. "That's not going to be earth-shattering."

There would have been significant repercussions if the court ruled that all tests conducted by marijuana-trained dogs were unconstitutional, he said.

The decision does not apply to federal law enforcement agencies working in Colorado, like the Drug Enforcement Administration, said Kamin, the law professor. The decision states that the justices considered the issues only as they apply to the state constitution, meaning the ruling cannot be appealed to the federal courts, he said.

Three of the court's seven judges disagreed with the majority's findings and questioned how the decision meshed with the U.S. Constitution and federal law, which still prohibits marijuana in any amount.

The decision is another example of the complications created by the conflict between state and federal marijuana laws, Chief Justice Nathan Coats wrote in his dissent, which called the majority's opinion "deeply flawed." The ruling creates a system in which a sniff test by a marijuana-trained dog is a search under the state constitution, but not under the federal constitution.

But Hood, the justice who wrote the majority opinion, said the court had to consider Colorado's specific laws.

"To the extent we end up alone on a jurisprudential island, it is an island on which Colorado voters have deposited us," he wrote. "Our role is not to question their decision. Rather, it is to apply the logic of existing law to a changing world. Though we are the first court to opine on whether the sniff of a dog trained to detect marijuana in addition to other substances is a search under a state constitution in a state that has legalized marijuana, we probably won't be the last."

Kamin said states often have rules about evidence that differ from federal standards, even outside of marijuana cases.

"I just don't see the conflict (the dissenting justices) are so worried about," he said.

The Colorado Supreme Court case stems from a 2015 incident in Moffat County during which a Craig police officer stopped a suspicious truck. The officer then requested that a K-9 conduct a sniff test of the truck. The Moffat County Sheriff's Office responded with a dog, Kilo, that alerted that drugs were inside.

Deputies searched the truck and found a meth pipe with some residue. They arrested the driver, Kevin McKnight, who was later convicted of two drug-possession charges.

But Kilo was trained to alert to marijuana as well as cocaine, heroin, ecstasy and methamphetamine. Police dogs are not trained to give different signals for different drugs.

McKnight's attorneys appealed the sentence and argued that the deputies' search was illegal because Kilo could have been alerting to the presence of a legal amount of marijuana and the officers didn't have enough evidence to search the truck otherwise.

The Colorado Supreme Court agreed, comparing the sniff to technologies such as thermal-imaging devices that could show both private, legal activity along with illegal acts. The court reversed McKnight's convictions.

"Because there was no way to know whether Kilo was alerting to lawful marijuana or unlawful contraband, Kilo's sniff violated McKnight's reasonable expectation of privacy," the court's majority opinion states.

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