That time Kilo alerted, and made himself obsolete
We here at Dahl, Fischer & Wilks have been hearing a lot about dogs lately. First, we are hooked on Malcolm Gladwell’s Revisionist History Podcast. If you have not listened to it, stop reading this and go listen to an episode. Do it now, go ahead, we’ll wait. Back now? Good. Love it? Good. We can still be friends. Anyway, in his recent episode “The Foot Soldier of Birmingham” Gladwell talks about a statue commemorating one of the defining moments of the civil rights struggle, when a photograph showing a police dog attacking a young black man in Birmingham drew national attention to the struggle. To look at the picture Gladwell references, scroll to the bottom of this Wikipedia article: (https://en.wikipedia.org/wiki/Birmingham_campaign). Gladwell’s take on it may surprise you, but suffice it to say, like many things in our world, how things are perceived matter more than how things are.
(pictured: not a police dog)
And dogs came up again because Colorado now has a law allowing people to break windows to save dogs (and kids) from overheating in cars. There are some requirements, of course, but effective August 9 this new law takes effect: http://leg.colorado.gov/sites/default/files/documents/2017A/bills/2017A_1179_signed.pdf.
(pictured: not a police dog, not a dog in a hot car, but a thirsty dog)
And, not to be outdone, the Colorado Court of Appeals recently decided an important case involving dogs. And because I am a lawyer, and neither as smart nor as entertaining as Gladwell, I want to write about that. First, trained drug detection dogs are common in Colorado. Many of those dogs have been trained to detect five different drugs, including cocaine, heroin, ecstasy, methamphetamine, and marijuana. But Colorado legalized marijuana, in some circumstances, by Constitutional Amendment. For purposes of this post, that legalization has two important effects. First, one must ask whether police should retire dogs trained to detect marijuana in Colorado. After all, dogs do not have different alerts based on the different kind of drug they detect. Hold that thought though, while we cover the other effect.
The second effect legalization caused is to create a bit of disagreement amongst law enforcement, defense attorneys, and judges about whether dog sniffs are searches and under what circumstances they are, or are not, violations of the Fourth Amendment. Taking the second issue first, a recent case decided by the Colorado Court of Appeals, People v. McKnight, 2017COA93, changed our current law on this issue (at least until the Colorado Supreme Court tells us different).
The facts of McKnight are interesting, in that they could have easily been written by a malicious law school professor. McKnight got convicted of possession of a controlled substance and possession of drug paraphernalia. The underlying facts surrounding his conviction came from an officer seeing McKnight’s truck parked in an alley. The officer then saw the truck park outside a house for about fifteen minutes. That house had been searched for drugs about seven months before. The officer watched as the truck left the house and committed a minor traffic violation (note to anyone doing anything at all illegal—follow the traffic code!).
Based on the violation, the first officer pulled the truck over. And that contact, so far as it went, was fine. But the officer went further. After identifying McKnight as the driver of the truck the officer recognized McKnight’s passenger as having been a drug user in the past. And based on that, the first officer called a second officer to the scene. The second officer had his drug sniffing dog, Kilo, sniff around the truck. Kilo, trained to detect the five drugs mentioned above, alerted. Quick side note, a dog in one of Colorado’s counties was infamous for his alert signal. While some dogs bark, or sit and stare, this one would, well, become demonstrably turgid when he alerted . . . . he loved his job apparently. The funny part was how officers referenced it—some would write the dog “alerted” while
others, gleefully I might add, would include the term “erection” as many times as they could.
(pictured: my alert dog, still not a police dog)
Anyway, the officers dealing with McKnight, based on Kilo’s alert, the truck being outside a house that had drugs in it seven months before, and the passenger being a drug user sometime in the indefinite past, searched the truck and found a pipe with controlled substance residue in it. McKnight moved to suppress the fruits of the search and argued the search violated his Fourth Amendment rights. The trial court disagreed, and McKnight appealed. The Court of Appeals considered the case, and a three judge panel could not come to a complete agreement about how to assess the officer’s conduct. But they did make some interesting, for dorky lawyers like me, rulings.
A brief history of dog sniffs is probably important to you, the readers. First, a “free air” dog sniff—where a dog sniffs around a car on a public roadway during a routine traffic stop—is not a search prohibited by the United States Constitution. Illinois v. Caballes, 543 U.S. 405, 408 (2005). Of course, the sniff can’t prolong the traffic stop—otherwise it becomes a search. Now, as any malicious law professor likes to test, the U.S. Constitution sets the floor for our rights. But state constitutions may provide more protection than the federal. But Colorado doesn’t, or at least didn’t in this regard. In a 2013 case, the Colorado Supreme Court adopted the same position articulated in Caballes. People v. Mason, 2013 CO 32. Of course, a SCOTUS case, Florida v. Jardines, changes the reasoning when dealing with houses, but ignore that for a moment.
Initially then, there seems to be no question that the sniff was lawful. But wait—as some of our readers have realized—Colorado law permits possession of marijuana under some circumstances. And Kilo, doing as he was trained, alerted but could not tell his handler what drug he smelled. For Judge Dailey, this issue made the sniff more like a search under Colorado’s constitution. And that is because a person has no reasonable expectation of privacy in illegal materials (like methamphetamine) but may have a reasonable expectation of privacy in sometimes legal materials (like marijuana in Colorado). So Judge Dailey held that the law required reasonable suspicion to have the dog sniff the truck. And Judge Dailey didn’t believe the officers had it.
The other two judges concurred in the result, but got there different ways. Judge Berger, agreed almost wholly with Judge Dailey. Berger wrote to refute the third judge’s reasoning and to further articulate why a person might have a privacy expectation under state law. Interestingly, Judge Berger noted marijuana is illegal under Federal law but still found that officers should only be enforcing state law where state and federal law conflict.
The third judge, Jones, went further than both Dailey and Berger. Judge Jones agreed with the other judges about the reasonable suspicion portion of the opinion, but Jones addressed the question of whether a dog alert under these circumstances (trained to detect marijuana and other drugs) could ever provide probable cause to search on its own. And Judge Jones would find that an alert, by itself, would never provide probable cause in situations like this. This ruling is somewhat fascinating, because dog alerts have been accorded a high level of deference by courts traditionally. Judge Jones then considered whether the alert, along with other evidence, provided probable cause to search. And Judge Jones found the police lacked probable cause here.
So, what does this mean? Well, there are direct implications of dogs trained to detect marijuana in Colorado. Going back to the initial effect on dogs like Kilo—do their alerts have any utility? Well, a dog trained not to alert in marijuana might have created a different result, as footnote 1 in Judge Jones’ opinion suggests. To that end, law enforcement must decide whether it makes sense to purchase dogs trained to detect marijuana.
The bigger question is, of course, whether the Colorado Supreme Court will review this case and issue a decision. Because the change articulated by this opinion—that reasonable suspicion is required for a dog sniff—is a clear change to the law. And if the Colorado Supreme Court reviews it, will they adopt the reasoning of Dailey/Berger reasoning, the Jones reasoning, or some other path?
And last, you can’t help but feel bad for Kilo. He did exactly what he had been trained to do, and in so doing might have cost him and those like him (dogs trained to detect marijuana) no end of headaches. I promised myself I wouldn’t make a bad pun about going to the dogs here. So I better stop before I do . . . .
Sam Evig
Dahl, Fischer & Wilks, LLC is a litigation and criminal defense law firm based in Denver and Colorado Springs. The firm’s founding attorneys, Stephanie Dahl, Kelly Fischer, and Ginny Wilks, founded the firm in 2011. The graciously allowed Sam Evig to join the firm in 2017.