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.
Filed Under: 4th amendment, colorado, drug dogs, probable cause
Comments on “Colorado Appeals Court Again Reminds Cops That Marijuana Legalization Means Their Drug Dogs Are Mostly Useless”
Maybe training dogs to enable fascism was a bad idea from the start.
Re:
At least we can retrain and rehome the dogs, provided the owners are also willing to learn how to take care of and handle them.
Oh the horror...
But… if they can’t use probable cause on four legs to justify any search they want then they might have to do their gorram jobs without violating rights in the process, and as any police union will likely be happy to tell you that’s simply not possible and presents an incredible barrier to proper police work.
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.
But after we make a contribution from the evidence locker, we can turn a legally possessed gram of marijuana into an illegally possessed kilogram or more of it, which will help make our case that no amount of marijuana is legal to possess no matter what the statutes say.
Hey, copper. Does it look like working hours to you? It doesn’t look like working hours to me. What brings me to Colorado Springs isn’t what I do in my off time. So I’d appreciate it if you got off my back about me duding it up and cutting loose with a dame when I’m not at the work site or in my work duds. Capiche?
Some old dogs here
Are drug dogs really “employed” for more than a decade?
I’m just rather surprised, I would have assumed that the time between when training is able to be completed and when old age starts being problematic would mean that few dogs trained prior to the amendment being passed would still be in service.
Of course if the dog -isn’t- trained to signal when it smells pot, and/or is trained to ignore it, then it’s arguably back to the old rules.
Remember, police dogs are officers, so when you retire them you have to treat them with dignity and respect.
Re:
But it’s so much quicker, easier and cheaper to just take them out back and euthanize them with a 9mm Parabellum round.
When you consider that courts have announced that cops don’t actually need to know the laws they’re meant to enforce, cops aren’t going to have a learning curve. Hell, cops don’t expect to have to learn at all. Just shoot and handcuff first, ask questions later, and cover the asses of fellow cops as your utmost priority.
Dogs can be retrained
These drug dogs can be retrained for other porpoises.
The RIAA and MPAA would propose to train the dogs to sniff out copyright infringing files on USB thumb drives, SD cards, laptops and phones. The dogs sensitive noses can easily discriminate between files that are properly licensed from those which are infringing.
Re:
To be fair, a properly trained sniffer dog can most likely do just about as good a job of identifying copyright infringing files, as computer algorithms, border officials or police officers can.
Re:
The worst thing about that is the dogs would probably do a better job than Content ID!
Re:
I mean, they would, but not because the idea is novel. Because the MPAA already trialed that way back in 2007, and even then that was because the dogs were trained to detect plastic – though what makes plastics distinctive was never explained, because plastic is pretty much everywhere. The same strategy would not work today where downloads and streaming are superior to getting an unauthorized disc off the street on the cheap.
Of course copyright enforcers would dream that a method of watermarking files exists that can be detected by Instagrammable animals, but considering even Malibu Media couldn’t be fucked to watermark their products…
When it comes to asset forfeiture it can be damned if you do damned at you don’t
I have heard of people being denied entry into Canada because they are not carrying enough money on their person, no matter how much you have in the bank.
That can cause a problem when travelling to Canada’s Wonderland, where you cannot go, from the West Coast, without going through Michigan.
Fortunately, my car does have one hiding spot built in by the factory where cops would never look, where I can hide my cash. As long as I declare it to US Customs going into and out of Canada, I am not breaking any laws in Michigan using that hiding spot. It is that good. I only have to declare it at Customs going into and out of the Untied States
And the new feature in the latest Android phones which makes booby trap mode obsolete even makes it impossible to even get encrypted data out of your phone.
The Times They Are A'Changin
Good to see more and more countries and states are legalizing marijuana.
Cops Are Useless Trash
ACAB. Yes, even your friend/family member. Until the supreme court changes its ruling that cops don’t have to protect anyone (which they get paid to do regardless) they are all worthless trash. The few ones that aren’t, got fired or even killed for going against the brotherhood.