Colorado Appeals Court Again Reminds Cops That Marijuana Legalization Means Their Drug Dogs Are Mostly Useless
from the time-to-put-some-officers-up-for-adoption dept
Colorado legalized recreational marijuana use in 2012. That’s an entire decade ago. Who knew the learning curve for cops would be so extreme?
Learning to deal with legalized drugs after years of useless drug warring has posed problems all over the country. Cops in Kansas(!) had to be told by a federal appeals court that someone traveling to or from a state with legalized drugs was not probable cause for a search. Cops in Oregon had to be informed by a court that the odor of marijuana was no longer “reasonable suspicion” in state with legalized marijuana.
And cops in Colorado — nearly a full decade after the fact — are still being told (twice!) that using drug dogs trained to detect the odor of marijuana can no longer create probable cause for a search. (h/t FourthAmendment.com)
Last December, a Colorado appeals court (belatedly) broke the bad news to local cops: drug dogs are no longer probable-cause-on-four-legs. Since drug dogs have been trained to detect contraband that hasn’t been contraband for years, an alert on a person or vehicle does not provide justification for a search. It’s time to take the furry officers out for a trip to the farm or around back or whatever euphemism covers what police officials have declared to be the end result of drug legalization.
This ruling [PDF] covers much of the same ground handled by the Colorado Appeals Court in the December 2021 Restrepo decision. It points to state Supreme Court precedent along the way to the conclusion, noting that a string of decisions have consecutively put police on ever increasing notice that a tool that detects drugs (including the legal ones) isn’t anything that can be relied on to generate probable cause.
Further, it cites state court decisions related to the legalization of marijuana as creating a higher privacy interest in residents’ cars, converting drug dog sniffs from something that just kind of happens into a search under state law and the state constitution.
With all of that in mind, the court says the drug dog sniff performed here did nothing to establish probable cause for a deeper search. And that still holds even if none of the drugs discovered were legal weed and even if officers also discovered an illegal handgun. You don’t get to keep the results of a search if the search wasn’t legal. And this one wasn’t.
And the police officers should have known this, says the Appeals Court.
When the police deployed the dog in this case, they would not have had to foresee, anticipate, or predict, wholly unaided, the effect of Amendment 64 on the permissibility of dog sniff searches. Existing case law at the time of Lopez’s encounter with the police would have put the police on notice that Amendment 64 had changed the legal landscape and undercut the rationale underlying Mason and Esparza.
Those cases turned sniffs into searches. Amendment 64 — years earlier — turned marijuana from illegal to legal. Plenty of on-point case law and yet Colorado cops still believe drug dogs are worth a damn. They aren’t. Or they aren’t as useful as they used to be.
“with the legalization of small amounts of marijuana, a dog’s alert doesn’t provide a yes-or-no answer to the question of whether illegal narcotics are present in a vehicle”
That means cops need more to work with than an animal trained to give cops permission to perform a search. They need probable cause to run a drug dog around a car and they simply didn’t have it here, as even the government admitted during arguments in front of the court.
On appeal, the People point to the circumstances that the court found satisfied the reasonable suspicion standard — Lopez’s nervousness, his driving an unregistered vehicle while on bond for a new narcotics case after having just been released from prison, and his claiming to be in Colorado Springs to do construction work despite being nicely dressed and accompanied by a female passenger.
But the People do not argue that these circumstances satisfied the probable cause standard. The most they argue is that “the trial court found this supported reasonable suspicion rather than probable cause. But there is room to disagree.”
The court isn’t willing to flesh out an argument the government could barely be bothered to make. It’s time to retire drug dogs in Colorado. Cops will just have to develop probable cause the old fashioned way, rather than relying on non-verbal cues from their four-legged partners. And with this many rulings on the books, no cop in Colorado can credibly claim this hasn’t been clearly established.