People v. Zuniga, Supreme Court Case No. 16SA92

• Docket Nº: Supreme Court Case No. 16SA92
• Citation: 372 P.3d 1052, 2016 CO 52
• Case Date: June 27, 2016
• Court: Supreme Court of Colorado

372 P.3d 1052
2016 CO 52

The PEOPLE of the State of Colorado, Plaintiff–Appellant
v.
Victor ZUNIGA, Defendant–Appellee.

Supreme Court Case No. 16SA92

Supreme Court of Colorado.

June 27, 2016

Attorneys for Plaintiff–Appellant: Michael J. Rourke, District Attorney, Nineteenth Judicial District, Patrick T. Roche II, Deputy District Attorney, Greeley, Colorado

Attorneys for Defendant–Appellee: Douglas K. Wilson, Public Defender, Jud Lohnes, Deputy Public Defender, Denver, Colorado

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 In this interlocutory appeal of the trial court's order suppressing evidence obtained as a result of a vehicle search, we consider whether the odor of marijuana can contribute to a finding of probable cause even though, since 2012, possession of one ounce or less of marijuana is allowed under Colorado law. We hold that the odor of marijuana is relevant to the totality of the circumstances test and can contribute to a probable cause determination. Therefore, the trial court erred when it disregarded the odor of marijuana in its probable cause analysis. Under the facts of this case, we conclude that there was probable cause to search the vehicle for illegal drugs in light of the two occupants' divergent stories about their time in Colorado, their “extreme” nervousness, the strong odor of raw marijuana, and a K–9 unit's alert at the rear of the vehicle. We therefore reverse the trial court's order suppressing evidence obtained from the search and remand for proceedings consistent with this opinion.

I. Facts and Procedural History

¶2 A Colorado State Trooper on patrol along Interstate 76 in Weld County stopped a Jeep Cherokee with Iowa license plates that was heading eastbound.¹ The Trooper approached the vehicle's open, passenger-side window and quickly noted a “heavy odor” of “raw” (i.e., unburnt) marijuana. The Trooper testified that “the nervousness [of the two men] was to an extreme that [ ] wasn't normal” when compared to other stops that the Trooper had conducted during his nineteen-year career. For example, the Trooper noted that the driver had beads of sweat on his face, stuttered in response to requests, and had shaky hands. The Trooper also stated that Defendant–Appellee Victor Zuniga, who was the passenger in the car, appeared nervous and was “overly nice” as he assisted the driver in retrieving requested documents from the glovebox. The documentation showed that the vehicle was not registered

372 P.3d 1055

in the driver's name. As a result, the Trooper requested that the driver exit and step behind the vehicle.

¶3 During the ensuing interview, the driver explained that the vehicle was his even though it was registered in his mother's name. As the conversation progressed, the Trooper again noted that the driver was “overly nervous” and would not look the Trooper in the eye, opting instead to look at the surroundings of the traffic stop. The Trooper asked the driver why the two were in Colorado, to which the driver responded that they drove out approximately four days earlier but “didn't go anywhere and didn't do anything” once there. The Trooper testified that he found this suspicious because people normally have “some kind of reason, whether it's business or pleasure,” for visiting another city or state. The driver also indicated that they stayed at a hotel in the Denver area, but he could not recall the name of the hotel.

¶4 The Trooper then moved to Zuniga, who was still sitting in the passenger side of the vehicle, and asked him why the two had visited Colorado. Zuniga responded that they drove out approximately two days earlier to visit his grandmother, who was in the hospital due to kidney problems. Zuniga also told the Trooper that he and the driver spent the rest of their time visiting the mountains and walking along the Sixteenth Street Mall in Denver. Zuniga said that they stayed at his grandmother's home after she was released from the hospital, but he could not remember specifically where his grandmother lived in the Denver area. The Trooper testified that during this brief conversation, Zuniga took several moments before responding to each question.

¶5 Based upon the men's inconsistent stories, their extreme nervousness, and the strong odor of raw marijuana, the Trooper was suspicious that criminal activity was ongoing in the vehicle. Accordingly, the Trooper told the two men that he was going to have his K–9 unit, Lobo, conduct a “free air sniff” around the vehicle. Lobo is trained to detect four different narcotic odors—marijuana, cocaine, methamphetamine, and heroin—but his alert to the presence of a narcotic is “general,” meaning he is unable to indicate to his handler which particular narcotic he detects. In addition, Lobo is unable to differentiate between different weights or amounts of narcotics, and thus he alerts any time he detects a scent of any of the four narcotics, regardless of the amount.

¶6 Lobo quickly alerted at the rear hatch of the Jeep Cherokee. As a result, the Trooper lifted the rear hatch door and found a large duffel bag, which the driver identified as Zuniga's. The Trooper opened the duffel bag and found approximately one pound of marijuana wrapped in plastic inside. The Trooper then turned his attention to an ice cooler next to the duffel bag. Upon opening the cooler, the Trooper immediately smelled a strong odor of raw marijuana and subsequently found 12.6 ounces of marijuana concentrate² under the ice in the cooler.

¶7 The Trooper called Zuniga over and asked him if the marijuana in the duffel bag and the marijuana concentrate in the cooler were his, to which Zuniga responded, “Yes, sir.” The Trooper arrested Zuniga, and the People charged him with two counts of possession with intent to manufacture or distribute marijuana or marijuana concentrate, both level three drug felonies. § 18–18–406(2)(b)(I), (III)(C), C.R.S. (2015).

¶8 After he pleaded not guilty, Zuniga filed a motion to suppress, arguing that the seized marijuana was the fruit of an illegal detention and search. In particular, Zuniga argued that (1) the Trooper lacked reasonable suspicion to stop the vehicle in the first place, (2) the prolonged detention of Zuniga was unlawful, and (3) the vehicle search was not supported by probable cause. After hearing the Trooper's testimony and argument from both parties, the trial court rejected Zuniga's first two arguments but agreed with him that the Trooper lacked probable cause to search the vehicle. The trial court therefore granted Zuniga's motion to suppress.

372 P.3d 1056

On the probable cause issue, the trial court first noted the predicament that, because marijuana possession is legal in certain circumstances in Colorado and drug-sniffing dogs are unable to differentiate between legal and illegal amounts of marijuana, “right now, you've got dogs that are alerting on ... legal substances.” Given this fact, the trial court concluded that there was no probable cause to search the vehicle because the Trooper could only speculate about the amount of marijuana he smelled and about the type and amount of narcotic that caused the dog's alert. In the trial court's view, because marijuana possession is legal in certain quantities, the odor of marijuana and the dog's alert could not contribute to a determination that probable cause existed to search for contraband or evidence of a crime.

¶10 This interlocutory appeal followed. See § 16–12–102(2), C.R.S. (2015); C.A.R. 4.1.

II. Interlocutory Jurisdiction

¶11 Under section 16–12–102(2) and C.A.R. 4.1, the People may file an interlocutory appeal to challenge certain types of adverse suppression rulings, including the suppression of evidence obtained from a search that the trial court deemed unlawful. People v. Smith , 254 P.3d 1158, 1160 (Colo. 2011). Here, the trial court's suppression of physical evidence that the Trooper obtained as a result of the vehicle search falls under the purview of the interlocutory appeal statute and rule.³

III. Analysis

¶12 To determine whether the trial court erred by suppressing the evidence, we first discuss the constitutional protection against unreasonable searches and the corresponding warrant requirement. Next, we describe the automobile exception to the warrant requirement, which permits the warrantless search of an automobile if there is probable cause to believe that the automobile contains evidence of a crime. We then outline the totality of the circumstances test used in probable cause analyses. With that test in mind, we then address the trial court's conclusion that the odor of marijuana cannot contribute to probable cause now that possession of one ounce or less of marijuana is allowed under Colorado law. We hold that the odor of marijuana is relevant to the totality of the circumstances test and can contribute to a probable cause determination. Given that rule, we conclude that, under the totality of the circumstances here, probable cause existed to search the vehicle, meaning the trial court's suppression order was erroneous.

A. Standard of Review

¶13 A probable cause determination is a mixed question of law and fact. People v. Coates , 266 P.3d 397, 400...