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.

Filed Under: 4th amendment, colorado, drug dog, probably cause

Your Tax Dollars At Work: Cops Arguing They Thought A Small Envelope Might Have Contained A Weapon

from the most-unreliable-narrators-of-all dept

When a police officer violates rights, they're put in the awkward position of defending their actions. If qualified immunity isn't immediately awarded to them by far-too-compliant courts, they've got to put in their work in defending the indefensible. That's when taxpayer dollars get spent defending actions that violate the rights of taxpayers.

And there are so many examples of bad behavior no one should be defending in court. Here are cops arguing that someone invoking their rights is suspicious behavior. Here's one claiming that driving carefully and obeying all traffic laws is suspicious. Here are two cops claiming there's an expectation of privacy in the room they used to drink alcohol and nap while on the clock. Here are some officers claiming Constitutional rights are time-wasting bullshit.

There's just so much of it. It would be darkly comic if it wasn't so tragic and/or frightening. Here's a school resource officer claiming a small amount of missing cash justified the strip search of twenty-two preteen girls. Here's another arguing it's OK to arrest a bunch of middle school students to "prove a point." Oh and it's apparently just good police work to hurl a flashbang grenade in the general direction of a toddler.

This is all a lead-in to this gem of a defense, offered by cops hoping to see their small drug bust survive their unconstitutional actions. (via FourthAmendment.com)

After running a red light, Joshua West was approached by a police officer after he had already parked his truck in the County Administration Building's parking lot. Officer Williams asked West to get back in his truck and proceeded to ask him questions about the truck's ownership, since it only had dealer tags in the window. West presented the officer with some paperwork -- including his valid license and insurance information. Officer Williams began writing a ticket for the red light violation.

At some point during this stop, West dropped a small object on the floor of his truck. The officers weren't sure what it was but they really wanted to take a look. So, without actually having the legal permission to do so (West did not give consent), they began searching the truck. During this search, they found the object West had dropped: a small envelope (one that was -- according to the officers -- "concealed in West's fist") containing a clear plastic bag with methamphetamine in it.

They then performed a second search, which turned up even more drugs. West moved to suppress this evidence, arguing the initial search of his truck was unjustified.

Here's where it gets ridiculous. The officers claimed the first unlawful search was in fact lawful because it was done for "officer safety." Somehow, this "protective search" for weapons inside the truck allowed the officer to open an envelope and inspect its contents. The appeals court [PDF] agrees with the district court: this is a very stupid thing to assert.

The district court found that the envelope -- which had been in West’s hands and lap to the end of the encounter -- was full of papers and could not have been used to hide even a small weapon without first pushing the papers aside and without creating a visible bulge. In the light of these circumstances, no reasonable suspicion could exist that would support Officer Sorrell’s initial search of West’s truck or the envelope for weapons.

Not only that, but there was nothing about the stop or West's behavior that should have given the officers any reason to suspect he was dangerous or carrying weapons he planned to use against them.

Given the totality of the circumstances presented in this case, we conclude that no probable cause existed to justify Officer Sorrell’s initial search of West’s truck. West was pulled over for having run a red light. West engaged in no erratic driving, and nothing evidenced that West attempted to flee. Neither officer had had prior dealings with or knowledge of West before the traffic stop. Nor did either officer smell or see marijuana or other contraband inside the truck.

During the traffic stop, West complied with Officer Williams’s orders, provided Officer Williams with the requested information and documents, and remained calm and cooperative. Officer Williams confirmed that West had a valid driver’s license and no outstanding warrants. These circumstances gave the officers no good reason to suspect West of engaging in criminal activity beyond running a red light.

The Appeals Court also disagrees with the sworn statements made by the officers, which were undermined by their own silent witness.

Although Officers Williams and Sorrell testified that West appeared nervous and agitated during this interaction with Officer Williams, the district court found that the officers’ testimony about West’s demeanor was contradicted by the video recording of the traffic stop.

All of this unjustified behavior led directly to cops arguing in court that they had to search an envelope because it might have contained a weapon. The evidence is gone, along with the conviction. And this was done with tax dollars. The government argued on behalf of these cops who couldn't take down a drug user without ignoring the Constitution. Lots of things are done in our name, using our money. Arguing that an small envelope might have contained a gun shouldn't be one of them.

Filed Under: 4th amendment, joshua west, police, probably cause, rights