Colorado Appeals Court Says A Drug Dog That Alerts On Now-Legal Weed Can't Create Probable Cause For A Search
from the no-dog,-no-matter-where-it's-located,-should-have-that-power dept
"Probable cause on four legs." That's the cop nickname for drug dogs, which need to do nothing more than something only perceptible to the officer/trainer to allow officers to engage in warrantless searches. For years, drug dogs and the "odor of marijuana" have allowed both cops and dogs to follow their noses to all sorts of otherwise-unconstitutional searches, much to the delight of law enforcement and its desire to make easy busts and seize cash.
Then came the creeping menace of legalized marijuana, which meant cops in some states could no longer assume the odor of marijuana was reasonably suspicious enough to convert pretextual stops into full-blown searches. These legal changes also promised to put their dogs out of business because they were trained to detect weed along with other illicit substances. With marijuana no longer necessarily illicit, the dogs became more of a problem than a solution. As far too many law enforcement officials claimed, the legalization meant the literal death of drug dogs, rather than just a speed bump on the road to warrantless searches.
Marijuana has been legal in Colorado since 2012. And yet, cops still use drug dogs that obviously cannot indicate via an "alert" whether it has detected now-legal weed or something still actually illegal under state law. That inability to tell officers "hey, I detected a legal substance" is now causing problems for drug convictions and their underlying drug dog-enabled searches.
The Colorado Court of Appeals has just ruled [PDF] that a drug dog alert no longer generates the required amount of probable cause necessary to allow cops to engage in deeper, broader searches of people and their property. (via FourthAmendment.com)
Here's how it began:
In 2017, drug task force investigators were following a suspected “high level” drug dealer when he visited Restrepo’s house. After the drug dealer drove away, some members of the task force stopped him; they found firearms and a quarter pound of methamphetamine in his vehicle. At some point, the drug dealer told officers that he had been at Restrepo’s house 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 for a couple of hours. During that time, the task force “decided to make a traffic stop.” After Restrepo rolled through a stop sign, the task force asked Jeremy Sheldon, a uniformed officer with the canine unit of the Colorado Springs Police Department, to stop Restrepo’s car. During the stop, Officer Sheldon patted Restrepo down and found $1,200 in Restrepo’s pocket. He then commanded his dog to perform a drug sniff of Restrepo’s vehicle. The dog, trained to alert to marijuana as well as to other controlled substances, alerted to Restrepo’s car. Officer 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. It said the dog's ability to also detect illicit substances gave the cops permission to perform the search of the backpack. In effect, the court told cops it was okay to use dogs that detected legal substances to generate probable cause to search for illegal substances. But it did rule that the sniff itself was not supported by reasonable suspicion. For whatever reason, it combined these two almost-contradictory conclusions into a single ruling that allowed the state to keep the evidence it recovered from the backpack.
The Appeals Court says this ruling is wrong. Since marijuana is legal -- and drug dogs trained to detect this odor will continue to detect it -- cops must have more to go on before they bring a drug dog into the mix. They must have probable cause to justify the deployment of a drug dog to sniff for contraband. It's no longer acceptable to run one around a stopped car or their belongings just because you happen to have one on hand.
When a dog trained to alert to both marijuana and illegal drugs alerts, the handler does not know if the dog is alerting to contraband or to a legal amount of marijuana. See McKnight II, ¶ 35. Therefore, a dog sniff from a dog trained to detect marijuana is a search under article II, section 7; it intrudes on a person’s reasonable expectation of privacy in lawful activity. Id. at ¶¶ 43,
Accordingly, there must be probable cause to believe a vehicle contains illegal narcotics under state law before deploying a drug detection dog trained to alert to marijuana.
There was no probable cause here. All the cops had at that point was an unverified assertion from an alleged drug dealer in their custody that drugs had been sold to Restrepo. What they didn't have was anything allowing them to escalate the pretextual stop to a full-blown search. The drug dog's alert changed nothing.
The evidence seized from the backpack vanishes, along with the conviction. And cops in Colorado are on notice they'll need to develop probable cause before they bring a drug dog in or risk losing their evidence in the future. Probable cause no longer walks on four legs in Colorado.
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Filed Under: 4th amendment, colorado, drug dog, probably cause
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But its to hard to do it the right way, we like our shortcuts & want to keep using them.
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Re:
After talking someone through the fact that trying to attach a shortcut to an email reply does not attach the file, I would say that shortcuts work great in the short term, right up until it becomes a problem
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It really says something about cops…
Killing someone/something because you can’t see an immediate use for them is cartoonish supervillain-tier evil. The fact that an actual police department said they’d have to kill all their drug sniffing dogs if legalization passed reveals all sorts of psychopathic thinking on top of the supervillain thing.
They can’t re-home animals deliberately trained to be so vicious that they’d be a danger to the public? Last I checked, ANYONE training a dog like that was subject to criminal charges.
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Re: It really says something about cops…
I remember before they banned fox hunting with dogs here in the UK, rich landowners were claiming the same thing, 'You can't change the law, we'll have to kill all these adorable beagles that are unadoptable because we've trained them to tear smaller animals apart. Think of the puppies!' It didn't work to swing public opinion behind them and the mass beagle death never came.
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Re: It really says something about cops…
Drug dogs are not attack dogs. Completely different training and skills and behaviors. Which makes the department's line of argument more, not less stupid.
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Re: It really says something about cops…
Yes. The cops routinely take Old Yeller out behind the woodshed and put a bullet in him when he retires. @@
You know, guide dogs are trained to not be social also...
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A court stating the obvious.
(All too rare an occurrence)
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Re:
Actually it the Appeals court telling a court "no......because it's effing obvious"
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The police call their dogs officers, and if you kill a police dog you are a cop killer, even if it's eating your face. Yet the police kill their own dogs as soon as they are no longer useful. ACAB.
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Re:
Former asset, no longer of use? Time to die!
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Re:
Since when was hypocrisy off-limits for police?
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I see the point, but...
I see the point that dogs trained as they are are potentially useless, but considering their previous use as a free pass, I have no sympathies on that whatsoever.
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Death for the dogs?
Surely there's a middle ground between a trained dog not being fit for purpose and death... Although, it does sound right for the police to assume a former asset should just be executed because its no longer useful to them
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Re: Death for the dogs?
The dogs can be retrained to detect the difference in odor of legally obtained marijuana from illegally obtained marijuana.
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Re: Death for the dogs?
UK police dogs live with their handler and family, and usually retire as family pets for their handlers. That includes the dogs trained to seize an arm or leg of suspects on command, however they are trained to do a job, rather than be a dangerously aggressive dog.
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Training
So are they going to stop training dogs to alert on marijuana?
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Re: Training
They actually alert on expectations of their handlers, so "problem solved" since the beginning of sniffing-cop-dog history.
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Re: Training
Or the trainers and their dogs can move to jurisdictions where weed is NOT legal.
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New Dogs
So obviously the solution for this is for the various PDs to retire their current canines and train new ones on various drugs without marijuana.
Problem solved.
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Re: New Dogs
Whoa, whoa, whoa...just one fucking minute there, pal!
Who are you to show up with the simplest and most obvious solution that doesn't involve shooting something? These are cops we're talking about. And the dogs' usability is just another nail that must be fixed by the only tool they know how to use.
What, do you expect them to do something that might result in their public image not being more fucked up than it is already? Do you really think that now they'd decide to use common sense?
For shame, btr. For shame.
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Re:
The assertion that all these dogs are only alerting to invisible cues from their handlers is ridiculous.
I helped train some bomb-sniffing dogs at the agency I used to work for and the dogs would find the explosive material every time, and neither the dog nor the handler knew where it was hidden. During training scenarios, the explosives could be hidden anywhere in a building. Sometimes there were multiple finds hidden about the building. Sometimes only one. Sometimes there were no finds hidden at all and the building was clean. In my two years assisting them and watching literally thousands of reps, I only saw one false positive where the dog alerted to explosives that weren't there and no false negatives where the dog missed explosives that were there. (And the false pos was likely due to minute residue left over from previous training.)
It's impossible for a handler to give a dog a cue-- intentional or otherwise-- to alert on something the handler himself does not know is there or if there is even anything to alert on at all. Which means these dogs find what they're trained to find.
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Re: Re:
Nobody asserted that they only alert to cues from their handlers. That's a straw man.
No, but they can give them a cue for something they believe is there, and the dog may alert on it. Which means those alerts cannot be relied on as evidence that there's anything there.
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Re: Re:
When was this ever a problem? All handlers need to give is a pretext to search and seize. Whether anything incriminating is actually there is immaterial.
And even if the poor searched sucker turns out to be innocent they'll have to spend far more time and resources in proving it. It's a win-win for the enforcers.
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