People v. McKnight

• Decision Date: 13 July 2017
• Docket Number: Court of Appeals No. 16CA0050
• Citation: 452 P.3d 82
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin Keith MCKNIGHT, Defendant-Appellant.
• Court: Colorado Court of Appeals

452 P.3d 82

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Kevin Keith MCKNIGHT, Defendant-Appellant.

Court of Appeals No. 16CA0050

Colorado Court of Appeals, Division II.

Announced July 13, 2017

Cynthia H. Coffman, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, John B. Plimpton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by JUDGE DAILEY

¶ 1 Since 2012, it has not been a violation of Colorado law for people who are at least twenty-one years old to possess up to one ounce of marijuana for personal use. Colo. Const. art. XVIII, § 16 (3)(a) (Amendment 64). To be clear, such possession is neither a criminal violation nor a civil violation.

¶ 2 This case presents two questions arising from our state's marijuana laws and law enforcement's use of dogs trained to detect marijuana and other controlled substances. First, does deploying a dog trained to detect marijuana to sniff a legitimately stopped vehicle constitute a "search" for purposes of the constitutional prohibitions of unreasonable searches? If so, law enforcement may not deploy such a dog without reasonable suspicion of criminal activity. Second, did the dog's alert in this case give police probable cause to search Kevin Keith McKnight's truck given that the dog was trained to alert if he detected either legal or illegal substances?

¶ 3 Two of us (Dailey and Berger, JJ.) agree with McKnight in answer to the first question, that is, that under our state constitution , the deployment of the dog here was a "search" requiring reasonable suspicion of criminal activity. And because the totality of the relevant circumstances did not give police reasonable suspicion to conduct a dog sniff of his truck, we conclude that the district court erred in denying his motion to suppress evidence found in the truck.

¶ 4 But two of us (J. Jones and Berger, JJ.) would also agree with McKnight in answer to the second question, that is, that the dog's alert, in combination with the other relevant circumstances, did not give the police probable cause to search his truck, and, for that reason, the district court erred in denying his motion to suppress evidence found in the truck.

¶ 5 Because all of us agree that the court's error in denying McKnight's motion to suppress was not harmless beyond a reasonable doubt, we reverse the district court's judgment of conviction and remand the case for further proceedings.

I. Background

¶ 6 The police recovered a pipe containing white residue from McKnight's truck. The People charged him with possession of a controlled substance (based on the residue) and possession of drug paraphernalia. McKnight moved to suppress the evidence found in his truck, arguing that law enforcement officers violated his constitutional rights by conducting a dog sniff of his truck without reasonable suspicion¹ and by otherwise searching his truck without probable cause.

¶ 7 At the suppression hearing, Officer Gonzales testified that he saw a truck parked in an alley. The truck left the alley and eventually parked outside of a house for about fifteen minutes. This house, according to Officer Gonzales, had been the subject of a search roughly seven weeks earlier that had turned up illegal drugs. When the truck drove away, Officer Gonzales followed it, saw it turn without signaling, and pulled it over.

¶ 8 McKnight was driving the truck. Officer Gonzales said he recognized McKnight's passenger from previous contacts with her, "including drug contacts" involving the use of methamphetamine. But when asked on cross-examination at what time, to his knowledge, the passenger had last used methamphetamine, Officer Gonzales declined to speculate about that and conceded that he was "just aware that at some point in the past she had been known to [him] as a user of methamphetamine."

¶ 9 At Officer Gonzales' request, Sergeant Folks came to the scene with his certified drug-detection dog, Kilo. Kilo is trained to detect cocaine, heroin, ecstasy, methamphetamine, and marijuana. He indicates that he has detected the odor of one of these substances by exhibiting certain behavior—barking, for example. His indicative behavior, however, does not vary based on the particular substance or amount of the substance he has detected.

¶ 10 When Sergeant Folks deployed Kilo to sniff McKnight's truck, Kilo displayed one of his trained indicators. Officers then told McKnight and the passenger to get out of the truck, searched it, and found a "glass pipe commonly used to smoke methamphetamine."

¶ 11 After the district court denied McKnight's suppression motion, the case proceeded to trial. A jury convicted McKnight of both counts.

II. Discussion

A. Standard of Review

¶ 12 When reviewing a suppression order, we defer to the district court's factual findings as long as evidence supports them, but we review de novo the court's legal conclusions. Grassi v. People , 2014 CO 12, ¶ 11, 320 P.3d 332.

B. Was Kilo's Sniff a Search?

¶ 13 The Federal and State Constitutions give people the right to be free from unreasonable searches and seizures. U.S. Const. amend. IV ; Colo. Const. art. II,§ 7 ; People v. Zuniga , 2016 CO 52, ¶ 14, 372 P.3d 1052.

¶ 14 "Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment." Illinois v. Caballes , 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (quoting United States v. Jacobsen , 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ). Any interest in possessing contraband is not legitimate. Id. And so official "conduct that only reveals the possession of contraband" does not compromise any legitimate privacy interest. Id. Applying that reasoning, the United States Supreme Court has held that employing a well-trained drug-detection dog during a lawful traffic stop does not implicate the Fourth Amendment because that is not a search. Id. at 409-10, 125 S.Ct. 834. Likewise, our supreme court has held that such a sniff is not a search under our state constitution. People v. Esparza , 2012 CO 22, ¶ 6, 272 P.3d 367.

¶ 15 Indeed, in People v. Mason , 2013 CO 32, 310 P.3d 1003, the supreme court said:

It is now 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.

Id. at ¶ 10.²

¶ 16 McKnight contends that a key premise underlying Caballes and Esparza —that a dog sniff reveals only contraband—is not true in this case. An alert from Kilo, he argues, is not so definitive: it may reveal that a person possesses something legal (an ounce or less of marijuana) or something illegal (illegal amounts of marijuana or another controlled substance).

¶ 17 In neither Mason nor Esparza did the court address the effect of Amendment 64, which changed the landscape upon which issues of the type raised here are decided. For while possession of marijuana by anyone in any amount remains a crime under federal law, see 21 U.S.C.§ 844(a) (2012), this is no longer the case under state law. Because Amendment 64 legalized possession for personal use of one ounce or less of marijuana by persons twenty-one years of age or older in Colorado, it is no longer accurate to say, at least as a matter of state law, that an alert by a dog which can detect marijuana (but not specific amounts) can reveal only the presence of "contraband."³ 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, i.e., the possession of one ounce or less of marijuana for personal use.

¶ 18 Because a dog sniff of a vehicle could infringe upon a legitimate expectation of privacy solely under state law , that dog sniff should now be considered a "search" for purposes of article II section 7 of the state constitution where the occupants are twenty-one years or older. Cf. Kyllo v. United States , 533 U.S. 27, 34-40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (the use of a thermal imaging device to detect the growth of marijuana in a home was a "search" under the Fourth Amendment because the device was capable of detecting lawful activity); see Curious Theatre Co. v. Colo. Dep't of Pub. Health & Env't , 220 P.3d 544, 551 (Colo. 2009) (noting that local circumstances may justify applying a provision in the state constitution differently than a parallel provision in the Federal Constitution); People v. Parks , 2015 COA 158, ¶ 21 n.3, 370 P.3d 346 (noting instances where it was "decided that [a] governmental intrusion constituted a search under the State Constitution even though it did not constitute a search under the Federal Fourth Amendment").⁴

C. What Level of Justification Was Required for the Search?

¶ 19 Prior to Esparza , the supreme court had indicated that, because of its minimally intrusive nature, a warrantless "search" effected by a dog sniff had to be supported by "a reasonable articulable suspicion that the item sniffed contains evidence of a crime." People v. Reyes , 956 P.2d 1254, 1256 n.1 (Colo. 1998), abrogated by Esparza , 2012 CO 22, 272 P.3d 367 ; see also People v. Boylan , 854 P.2d 807, 811 (Colo. 1993) ("[A] dog-sniff search need be justified not by probable cause sufficient to obtain a search warrant, but instead by reasonable suspicion, similar to that required to stop and frisk a person suspected of involvement in imminent criminal activity."), abrogated by Esparza , 2012 CO 22, 272 P.3d 367 ; People v. Unruh , 713 P.2d 370, 379 (Colo. 1986) ("[T]he balance between governmental and individual interests in this case can best be struck by requiring only reasonable suspicion as a prerequisite for the sniff search."), abrogated by Esparza , 2012 CO 22, 272 P.3d 367.

¶ 20 Based on this reasoning, we conclude that "reasonable suspicion" is ...