People v. McKnight
2019 CO 36, 446 P.3d 397 (2019)
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Rule of Law:
Under the Colorado Constitution, a sniff from a drug-detection dog trained to alert to marijuana constitutes a search because it can detect lawful activity, and such a search requires law enforcement officers to have probable cause to believe that the area contains a drug in violation of state law before deploying the dog.
Facts:
- In February 2015, Craig Police Officer Bryan Gonzales observed Kevin McKnight's pickup truck parked facing the wrong way in a one-way alley.
- McKnight's truck then parked in front of a residence where police had found drugs almost two months earlier, remaining there for about fifteen minutes with no one exiting.
- Officer Gonzales pulled McKnight's truck over after McKnight failed to signal a turn.
- Gonzales recognized the passenger in McKnight's truck as someone who had used methamphetamine 'at some point in the past,' but not recently.
- Sergeant Courtland Folks arrived with his drug-detection dog, Kilo, who was trained to detect odors of marijuana, methamphetamine, cocaine, heroin, and ecstasy, and exhibits the same alert for all five.
- Kilo quickly 'alerted' on the driver's door beneath the driver's open window, indicating the presence of one of the trained substances.
- Officers ordered McKnight and the passenger out of the truck and, after patting them down and finding nothing, searched the truck by hand.
- In a storage compartment under the rear seat, officers found a pipe containing suspected methamphetamine residue.
Procedural Posture:
- Prior to trial, Kevin McKnight moved to suppress the pipe, arguing it was the fruit of an unconstitutional search under both the U.S. and Colorado Constitutions.
- The trial court denied the motion to suppress, concluding that a dog sniff trained to detect marijuana does not constitute a search, or if it was, there was reasonable suspicion, and Kilo was reliable.
- A jury subsequently convicted McKnight of possession of a controlled substance and possession of drug paraphernalia.
- McKnight appealed, and a division of the Colorado Court of Appeals unanimously reversed his convictions, finding the trial court erred in denying the motion to suppress.
- The People filed a petition for a writ of certiorari, which the Colorado Supreme Court granted.
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Issue:
Does a drug-detection dog sniff of a vehicle constitute a 'search' requiring probable cause under Article II, Section 7 of the Colorado Constitution when the dog is trained to alert to marijuana, which can be legally possessed under state law by adults 21 and older, even though marijuana remains federally illegal?
Opinions:
Majority - Justice Hood
Yes, a drug-detection dog sniff trained to alert to marijuana constitutes a search requiring probable cause under Article II, Section 7 of the Colorado Constitution. The court holds that Amendment 64, which legalized the possession of up to one ounce of marijuana by adults twenty-one and older in Colorado, expanded the protections of the state constitution to include a reasonable expectation of privacy in this lawful activity. Since a drug-detection dog trained to detect marijuana cannot distinguish between legal and illegal amounts or other illegal narcotics, its sniff can now detect lawful activity. Therefore, the dog's sniff is deemed a 'search' under the Colorado Constitution, similar to sense-enhancing technology that reveals private, lawful activity. Such a search, being a governmental intrusion into a reasonable expectation of privacy, must be justified by probable cause, not merely reasonable suspicion. The court found that the factors present (McKnight parking near a house where drugs were found two months prior and the passenger's past drug use) were insufficient to establish probable cause for Kilo's sniff of the truck. Consequently, the evidence (the pipe) obtained from the subsequent search was inadmissible, and the exclusionary rule is affirmed as the appropriate remedy for state constitutional violations.
Dissenting - Chief Justice Coats
No, the majority's decision radically reconstructs the state's constitutional Bill of Rights and is deeply flawed. Chief Justice Coats asserts that the majority incorrectly implies that prior cases like _Zuniga_ and _Cox_ effectively foreclosed a dog's alert alone from providing probable cause. The dissent argues that Amendment 64 did not create an expectation of privacy in activity that remains unlawful under federal law, which is supreme. It states that the amendment does not reference search and seizure provisions or suggest restrictions on state officers detecting federal crimes, and the reference to 'individual privacy' is limited to retailer data collection. Chief Justice Coats also criticizes the majority's adoption of a separate state exclusionary rule without adequate justification, noting the court had previously rejected such a rule. He expresses concern that the majority's rationale unwittingly exposes the marijuana initiative and the state's Bill of Rights to a greater risk of federal preemption.
Dissenting - Justice Samour
No, a dog sniff of the public air outside a car should not be considered a search under the Colorado Constitution. Justice Samour argues that the majority skirts the critical question of whether a driver has a reasonable expectation of privacy in odors that escape from their car into the public airspace. He contends that while McKnight may have a privacy expectation in the possession of legal marijuana, this does not extend to its odor knowingly exposed to the public air. Justice Samour finds the majority's inference from _Illinois v. Caballes_ unwarranted, as _Caballes_ did not address this specific issue, and its analogy to _Kyllo v. United States_ (thermal imaging of a home) inappropriate, highlighting the significant differences between a home and a car, and between a dog's nose and advanced technology. He points out that the vast majority of courts hold no reasonable expectation of privacy in such odors, making the majority an 'outlier.' Justice Samour concludes that the majority's decision is clearly anchored in federal Fourth Amendment jurisprudence, not unique Colorado constitutional law, despite its disclaimer.
Analysis:
This case significantly reshapes search and seizure law in Colorado by recognizing a new privacy interest rooted in state constitutional legalization of marijuana. It establishes Colorado's unique position relative to federal law regarding dog sniffs, potentially influencing other states with similar marijuana laws. The decision strengthens state constitutional autonomy in criminal procedure and expands the application of the exclusionary rule for state constitutional violations, demanding a higher standard (probable cause) for dog deployments in situations where legal substances might be detected.
