People v. McKnight, Supreme Court Case No. 17SC584

• Decision Date: 20 May 2019
• Docket Number: Supreme Court Case No. 17SC584
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Kevin Keith MCKNIGHT, Respondent.
• Court: Colorado Supreme Court

446 P.3d 397

The PEOPLE of the State of Colorado, Petitioner,

v.Kevin Keith MCKNIGHT, Respondent.

Supreme Court Case No. 17SC584

Supreme Court of Colorado.

May 20, 2019

Rehearing Denied July 01, 2019

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Megan A. Ring, Public Defender, John Plimpton, Deputy Public Defender, Denver, Colorado

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶1 Inside defendant Kevin McKnight's truck, police officers discovered a pipe containing what later proved to be methamphetamine residue. That discovery culminated in McKnight's conviction for certain drug offenses. On appeal, he challenged the constitutionality of the search that revealed the pipe.

¶2 A division of the court of appeals reversed McKnight's convictions. People v. McKnight , 2017 COA 93, ¶ 25, ––– P.3d ––––. Each member of the division wrote separately, wrestling with what effect, if any, legalized marijuana in Colorado should have on the constitutionality of the search of McKnight's truck. To which you might say, but this is a methamphetamine case. So, why are we talking about marijuana? Well, the drug-detection dog used to find the pipe, Kilo, was trained to alert on multiple drugs, including marijuana. Even a hint of marijuana can trigger the same response from Kilo as any quantity of methamphetamine.

¶3 And that's where things get tricky. After all, the possession of an ounce or less of marijuana by someone twenty-one or older is legal in Colorado, following the passage of Amendment 64, Colo. Const. art. XVIII, § 16 (3), even though such possession remains illegal under federal law. Thus, no matter how reliable his nose, Kilo can now render a kind of false positive for marijuana. He has been trained to alert to marijuana based on the notion that marijuana is always contraband, when that is no longer true under state law. And historically, whether a drug-detection dog might alert on noncontraband drives whether the dog's sniff constitutes a search implicating constitutional protections. The dog's sniff arguably intrudes on a person's reasonable expectation of privacy in lawful activity. If so, that intrusion must be justified by some degree of particularized suspicion of criminal activity.

¶4 Does this mean that Amendment 64 gave McKnight a reasonable expectation of privacy under either the federal or state constitution that was violated by Kilo's keen sense of smell? McKnight says yes. Among other things, he claims that the Colorado Constitution prohibited Kilo's intrusion without at least reasonable suspicion that McKnight had committed or was committing a crime. Because there was none, McKnight asserts that the trial court should have suppressed the pipe. Two members of the division agreed. McKnight , ¶ 3.

¶5 And even if the "sniff [was] up to snuff" (to use Justice Kagan's popular shorthand from a slightly different context in Florida v. Harris , 568 U.S. 237, 248, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) ), McKnight further argued that there was no probable cause for the post-sniff hand search of his truck that revealed the pipe. Again, because of Amendment 64, two members of the division agreed. McKnight , ¶ 4.

¶6 The People counter that, despite Amendment 64, marijuana remains contraband in many circumstances at the state level, and illegal under all circumstances federally, and thus Kilo's sniff was not a search requiring so much as reasonable suspicion. The People further contend that an alert from a dog trained to detect marijuana, in addition to other substances, still provides probable cause justifying a search.

¶7 We hold that a sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under article II, section 7 of the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older. We further hold that, in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff. Because there was no such probable cause justifying Kilo's search of McKnight's truck, the trial court erred in denying McKnight's motion to suppress.

¶8 Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶9 Evidence presented at a suppression hearing established the following facts.

¶10 While on patrol in an unmarked police vehicle one night in February 2015, Craig Police Officer Bryan Gonzales observed a parked pickup truck facing the wrong way in a one-way alley near an apartment complex. A man stood outside of the passenger-side door of the truck. Although Officer Gonzales saw no behavior consistent with an exchange or transaction, he followed the truck as it traveled a few blocks. The truck then parked in front of a residence where police had found drugs almost two months earlier, and it remained parked there for approximately fifteen minutes. During that time, no one exited the truck or the residence. When the truck started moving again, Gonzales trailed along.

¶11 When the driver of the truck failed to signal a turn, Gonzales pulled the truck over. He discovered that McKnight was the driver. And Gonzales recognized the passenger as someone who had used methamphetamine "at some point in the past," but he wasn't sure how recently.

¶12 During the traffic stop, Gonzales asked Sergeant Courtland Folks of the Moffat County Sheriff's Office to respond with his drug-detection dog, Kilo, who had been trained to detect the odors of marijuana, methamphetamine, cocaine, heroin, and ecstasy. If Kilo detects the scent of any one of those substances, he should alert. And he exhibits the same alert for all five drugs.

¶13 Within five minutes of the stop, Kilo was on the job. As Folks walked Kilo around McKnight's truck, Folks asked McKnight if he had "any narcotics on him." McKnight said no. Kilo quickly "alerted" on the driver's door beneath the driver's open window. This means that Kilo engaged in a rapid sniffing pattern and behaved in a manner suggesting the presence of one of the substances on which he had been trained. According to Folks, Kilo then "put his nose on the driver's door, back to the door handle, did a purge, which means he cleared his nose, took another deep breath and immediately started giving a trained indication, which was barking."

¶14 The officers then ordered McKnight and the passenger to exit the truck. After they complied, the officers patted them down and found nothing on them. The officers then searched the truck by hand. In a storage compartment under the rear seat, they found a pipe containing suspected methamphetamine residue.

¶15 Before trial, the defense moved to suppress the pipe, arguing that it was the fruit of an unconstitutional search. Specifically, McKnight argued that because marijuana is legal in Colorado and Kilo was trained to detect marijuana, Kilo's sniff was a search that required particularized suspicion of criminal activity before Kilo could be deployed, and there was no such suspicion on these facts. Moreover, he contended that Kilo's alert did not provide probable cause for a full-blown, human search of the truck. Through counsel, McKnight grounded his arguments in the search and seizure clauses of both the United States and Colorado Constitutions.

¶16 After a hearing, the trial court denied the motion to suppress. In relevant part, the trial court noted that the possession of marijuana remains illegal under many circumstances in Colorado and is categorically illegal under federal law. Without explicitly stating as much, the trial court seemed to reason that a sniff by a dog trained to detect marijuana does not constitute a search. And even if Kilo's sniff was a search, the trial court went on to conclude that there was reasonable suspicion of criminal activity supporting the search. With ample record support, the court also concluded that Kilo reliably sniffs out the drugs on which he's been trained. The trial court did not address whether there was probable cause for the officers' hand search of the truck.

¶17 A jury later convicted McKnight of possession of a controlled substance and possession of drug paraphernalia.

¶18 McKnight appealed. In three separate but partially overlapping opinions, the court of appeals unanimously agreed that the trial court erred in denying McKnight's motion to suppress the pipe and that the error was not harmless. Therefore, the division reversed McKnight's convictions.

• Judge Dailey, writing for himself and Judge Berger, agreed with McKnight that, under the Colorado Constitution after the enactment of Amendment 64, Kilo's sniff was a search requiring reasonable suspicion of criminal activity. McKnight , ¶ 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."). Judge Dailey further determined that the reasonable suspicion standard should govern, and he concluded that the totality of the circumstances did not give the police reasonable suspicion that McKnight had engaged in criminal activity. Id. at ¶¶ 19–20, 22–24.

• Judge Jones, writing for himself and Judge Berger, agreed with McKnight that Kilo's alert, even in combination with other circumstances, did not give the police probable cause to conduct a warrantless hand search of McKnight's truck. Id. at ¶¶ 49–54 (Jones, J., specially concurring). In doing so, Judge Jones sidestepped the issue of whether Kilo's sniff now constitutes a search under state law. Id. at ¶ 37.

• Judge Berger, writing for himself, explained how a person could have an enforceable expectation of

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