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: , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Colorado Appeals Court Says A Drug Dog That Alerts On Now-Legal Weed Can't Create Probable Cause For A Search”

Subscribe: RSS Leave a comment
24 Comments
Bergmansays:

It really says something about cops…

Killing someone/something because you can’t see an immediate use for them is cartoonish supervillain-tier evil. The fact that an actual police department said they’d have to kill all their drug sniffing dogs if legalization passed reveals all sorts of psychopathic thinking on top of the supervillain thing.

They can’t re-home animals deliberately trained to be so vicious that they’d be a danger to the public? Last I checked, ANYONE training a dog like that was subject to criminal charges.

Bloofsays:

Re: It really says something about cops…

I remember before they banned fox hunting with dogs here in the UK, rich landowners were claiming the same thing, ‘You can’t change the law, we’ll have to kill all these adorable beagles that are unadoptable because we’ve trained them to tear smaller animals apart. Think of the puppies!’ It didn’t work to swing public opinion behind them and the mass beagle death never came.

Anonymoussays:

Re: New Dogs

Whoa, whoa, whoa…just one fucking minute there, pal!

Who are you to show up with the simplest and most obvious solution that doesn’t involve shooting something? These are cops we’re talking about. And the dogs’ usability is just another nail that must be fixed by the only tool they know how to use.

What, do you expect them to do something that might result in their public image not being more fucked up than it is already? Do you really think that now they’d decide to use common sense?

For shame, btr. For shame.

Henry Bowmansays:

“drug dogs, which need to do nothing more than something only perceptible to the officer/trainer to allow officers to engage in warrantless searches.”

More importantly, dogs smart enough to alert to an unconscious cue that even an honest officer is unaware he is emitting, as the case of the horse Clever Hans proved. The officer straightened his spine? Raised his eyebrows? The dog is eager to please.

Dogs as accusers can’t be cross-examined — all you need to understand to outlaw this practice.

btr1701says:

Re:

The assertion that all these dogs are only alerting to invisible cues from their handlers is ridiculous.

I helped train some bomb-sniffing dogs at the agency I used to work for and the dogs would find the explosive material every time, and neither the dog nor the handler knew where it was hidden. During training scenarios, the explosives could be hidden anywhere in a building. Sometimes there were multiple finds hidden about the building. Sometimes only one. Sometimes there were no finds hidden at all and the building was clean. In my two years assisting them and watching literally thousands of reps, I only saw one false positive where the dog alerted to explosives that weren’t there and no false negatives where the dog missed explosives that were there. (And the false pos was likely due to minute residue left over from previous training.)

It’s impossible for a handler to give a dog a cue– intentional or otherwise– to alert on something the handler himself does not know is there or if there is even anything to alert on at all. Which means these dogs find what they’re trained to find.

naschsays:

Re: Re:

The assertion that all these dogs are only alerting to invisible cues from their handlers is ridiculous.

Nobody asserted that they only alert to cues from their handlers. That’s a straw man.

It’s impossible for a handler to give a dog a cue– intentional or otherwise– to alert on something the handler himself does not know is there or if there is even anything to alert on at all.

No, but they can give them a cue for something they believe is there, and the dog may alert on it. Which means those alerts cannot be relied on as evidence that there’s anything there.

Anonymoussays:

Re: Re:

something the handler himself does not know is there or if there is even anything to alert on at all

When was this ever a problem? All handlers need to give is a pretext to search and seize. Whether anything incriminating is actually there is immaterial.

And even if the poor searched sucker turns out to be innocent they’ll have to spend far more time and resources in proving it. It’s a win-win for the enforcers.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...
Older Stuff
13:40 It's Great That Winnie The Pooh Is In The Public Domain; But He Should Have Been Free In 1982 (Or Earlier) (35)
12:06 Norton 360 Now Comes With Crypto Mining Capabilities And Sketchy Removal Process (28)
10:45 Chinese Government Dragnet Now Folding In American Social Media Platforms To Silence Dissent (14)
10:40 Daily Deal: The 2022 Ultimate Cybersecurity Analyst Preparation Bundle (0)
09:29 A Fight Between Facebook And The British Medical Journal Highlights The Difficulty Of Moderating 'Medical Misinformation' (9)
06:29 Court Ruling Paves The Way For Better, More Reliable Wi-Fi (4)
20:12 Eighth Circuit (Again) Says There's Nothing Wrong With Detaining Innocent Minors At Gunpoint (15)
15:48 China's Regulatory War On Its Gaming Industry Racks Up 14k Casualties (10)
13:31 Chinese Government Fines Local Car Dealerships For Surveilling While Not Being The Government (5)
12:08 Eric Clapton Pretends To Regret The Decision To Sue Random German Woman Who Listed A Bootleg Of One Of His CDs On Ebay (29)
10:44 ICE Is So Toxic That The DHS's Investigative Wing Is Asking To Be Completely Separated From It (29)
10:39 Daily Deal: The 2022 Complete Raspberry Pi And Arduino Developer Bundle (0)
09:31 Google Blocked An Article About Police From The Intercept... Because The Title Included A Phrase That Was Also A Movie Title (24)
06:22 Wireless Carriers Balk At FAA Demand For 5G Deployment Delays Amid Shaky Safety Concerns (16)
19:53 Tenth Circuit Denies Qualified Immunity To Social Worker Who Fabricated A Mother's Confession Of Child Abuse (35)
15:39 Sci-Hub's Creator Thinks Academic Publishers, Not Her Site, Are The Real Threat To Science, And Says: 'Any Law Against Knowledge Is Fundamentally Unjust' (34)
13:32 Federal Court Tells Proud Boys Defendants That Raiding The Capitol Building Isn't Covered By The First Amendment (25)
12:14 US Courts Realizing They Have A Judge Alan Albright Sized Problem In Waco (17)
10:44 Boston Police Department Used Forfeiture Funds To Hide Purchase Of Surveillance Tech From City Reps (16)
10:39 Daily Deal: The Ultimate Microsoft Excel Training Bundle (0)
09:20 NY Senator Proposes Ridiculously Unconstitutional Social Media Law That Is The Mirror Opposite Of Equally Unconstitutional Laws In Florida & Texas (25)
06:12 Telecom Monopolies Are Exploiting Crappy U.S. Broadband Maps To Block Community Broadband Grant Requests (7)
12:00 Funniest/Most Insightful Comments Of 2021 At Techdirt (17)
10:00 Gaming Like It's 1926: Join The Fourth Annual Public Domain Game Jam (6)
09:00 New Year's Message: The Arc Of The Moral Universe Is A Twisty Path (33)
19:39 DHS, ICE Begin Body Camera Pilot Program With Surprisingly Good Policies In Place (7)
15:29 Remembering Techdirt Contributors Sherwin And Elliot (1)
13:32 DC Metro PD's Powerful Review Panel Keeps Giving Bad Cops Their Jobs Back (6)
12:11 Missouri Governor Still Expects Journalists To Be Prosecuted For Showing How His Admin Leaked Teacher Social Security Numbers (39)
10:48 Oversight Board Overturning Instagram Takedown Of Ayahuasca Post Demonstrates The Impossibility Of Content Moderation (10)
More arrow
This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it