People v. Lopez, Court of Appeals No. 19CA1727

• Docket Number: Court of Appeals No. 19CA1727
• Decision Date: 30 June 2022
• Citation: 518 P.3d 775,2022 COA 70 M
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jason Robert LOPEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

518 P.3d 775
2022 COA 70 M

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Jason Robert LOPEZ, Defendant-Appellant.

Court of Appeals No. 19CA1727

Colorado Court of Appeals, Division I.

Announced June 30, 2022
As Modified July 14, 2022
Rehearing Denied July 28, 2022

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Kimberly Penix, Alternate Defense Counsel, Fort Collins, Colorado, for Defendant-Appellant

Opinion by JUDGE DAILEY

¶ 1 Defendant, Jason Robert Lopez, appeals the judgment of conviction entered on jury verdicts finding him guilty of six counts of possessing a controlled substance and as a special offender on four of those counts for possessing a weapon during a drug crime. We reverse and remand for a new trial.

I. Background

¶ 2 On August 17, 2016, Detective Kristopher Fish pulled Lopez over in Colorado Springs for driving a vehicle without a valid registration and failing to signal while turning. At the time, a passenger—Naudia Delozier—was also in the car.

¶ 3 Noticing, among other things, how nervous Lopez was, Detective Fish summoned a K-9 unit to conduct a dog sniff of the exterior of the vehicle. After the dog

518 P.3d 777

alerted to the presence of narcotics, the police searched the interior of the vehicle, finding illegal narcotics,¹ a loaded semiautomatic handgun, and a bag of tools.

¶ 4 The police arrested Lopez but not Delozier. At trial, Lopez's defense was that the drugs were Delozier's.

¶ 5 The jury subsequently found Lopez guilty of all counts, and, after adjudicating him an habitual offender based on seven prior felony convictions, the trial court sentenced him to a term of sixty-four years’ imprisonment in the custody of the Department of Corrections.

¶ 6 Lopez now appeals, contending that the trial court erred by (1) denying his motion to suppress evidence recovered in the search of the car; (2) excluding Delozier's hearsay statements exculpating him; and (3) allowing prosecutorial misconduct during closing argument.

¶ 7 Because we agree with Lopez's first contention, we see no need to address the other two.

II. Suppression of Evidence

¶ 8 Lopez contends that the trial court erred by not excluding evidence obtained as the result of an illegal, exploratory dog sniff of the vehicle's exterior. The dog sniff was illegal, he says, because, as the trial court found, it was not supported by probable cause. We agree and conclude that reversal is required.

A. Facts

¶ 9 Before the execution of the dog sniff of the car,

• Detective Fish saw Lopez having difficulty opening his window and, after getting out of the vehicle, appearing nervous (breathing rapidly and reaching into his pockets);

• Lopez told Detective Fish that he had recently been released from prison and was out on bond in a pending narcotics case; and,

• Lopez also told Detective Fish that, although he lived in Aurora, he was in Colorado Springs doing construction work (a claim the detective found suspicious because Lopez was dressed in clean clothes, an ironed shirt, and "designer shoes").

B. Dog Sniff "Searches"

¶ 10 Article II, section 7 of the Colorado Constitution and the Fourth Amendment to the United States Constitution protect against unreasonable searches and seizures. People v. Johnson , 2021 CO 35, ¶ 19, 486 P.3d 1154.

¶ 11 In People v. Mason , 2013 CO 32, ¶ 10, 310 P.3d 1003, the supreme court said it was "settled that walking a trained narcotics detection dog around a car that has not been unlawfully stopped or detained does not implicate the protections of either the Fourth Amendment or Article II, section 7 of the state constitution." (citing Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) ); accord People v. Esparza , 2012 CO 22, ¶ 2, 272 P.3d 367. The court reasoned that because a dog sniff for drugs could only reveal the presence of illegal (or contraband) substances in which there could be no legitimate expectation of privacy, the sniff would not constitute a "search" under those constitutional provisions. See Caballes , 543 U.S. at 409, 125 S.Ct. 834 ; Mason , ¶ 10 ; Esparza , ¶ 11.

¶ 12 In 2012, Coloradans passed Amendment 64 to the Colorado Constitution. See Colo. Const. art. XVIII, § 16. Amendment 64 provides that it is "not unlawful and shall not be an offense under Colorado law" for a person who is at least twenty-one years of age to possess one ounce or less of marijuana. Colo. Const. art. XVIII, § 16 (3).²

¶ 13 In People v. McKnight , 2017 COA 93, 452 P.3d 82 ( McKnight I ), aff'd , 2019 CO 36, 446 P.3d 397, a division of this court held

518 P.3d 778

that, because Amendment 64 "legalized possession for personal use of one ounce or less of marijuana by persons twenty-one years of age or older ..., it is no longer accurate to say ... that an alert by a dog which can detect marijuana (but not specific amounts) can reveal only the presence of ‘contraband.’ " Id. at ¶ 17. Consequently, because "[a] dog sniff could result in an alert with respect to something for which, under Colorado law, a person has a legitimate expectation of privacy," it is a "search" under the Colorado Constitution. Id. at ¶¶ 17, 18. This type of "search," the division held, has to be justified by a reasonable suspicion that evidence of illegal activity will be found in the car. Id. at ¶ 20.

¶ 14 On certiorari review, the supreme court upheld the division's determination that, in light of Amendment 64's adoption, a dog sniff is a "search" under the Colorado Constitution. People v. McKnight , 2019 CO 36, ¶ 48, 446 P.3d 397 ( McKnight II ). But, the supreme court said, this type of search has to be justified by a showing of probable cause, and not just reasonable suspicion. Id. at ¶¶ 49–50 ; see People v. Cox , 2017 CO 8, ¶ 26, 401 P.3d 509 ("[P]robable cause is more demanding than ... reasonable suspicion ....").

¶ 15 McKnight I was decided on July 13, 2017, nearly eleven months after Detective Fish summoned the K-9 unit to conduct the dog sniff.

¶ 16 McKnight II was decided on May 20, 2019.

C. The Trial Court's Suppression Ruling

¶ 17 The trial court conducted the suppression hearing in this case on March 7, 2019, nearly two years after McKnight I but nearly two and a half months before McKnight II .

¶ 18 At the suppression hearing, Lopez primarily argued that the detective's deployment of a marijuana-detecting dog violated the Colorado Constitution as interpreted in McKnight I because the police did not have a reasonable suspicion of criminal activity before deploying the dog to sniff the car.

¶ 19 But Lopez's attorney also argued that "having somebody nervous who is on bond [and] just been released from prison does not give any probable cause for a police officer to react." And counsel agreed that the court was correct in summarizing his position as, "So you are saying ... lack of reasonable suspicion to stop to begin with, lack of cause to detain slash pat-down defendant, lack of probable cause or reasonable grounds to conduct the dog sniffs , or reasonable suspicion." (Emphasis added.)³

¶ 20 The trial court denied Lopez's motion to suppress, finding that the dog sniff was proper because it was supported by circumstances known to the police constituting reasonable suspicion,⁴ though not probable cause.

D. Analysis

¶ 21 On appeal, Lopez relies on the trial court's finding that the police did not have probable cause to conduct a search before deploying the dog. He contends that (1) the trial court's determination that the police lacked probable cause to search at that point means the search was illegal under McKnight II ; and (2) because his case was pending on appeal when McKnight II was announced, he is entitled to its retroactive application.

¶ 22 Lopez is entitled to the retroactive application of McKnight II . See

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