CO: Dog alert for MJ still justifies a search of a car, even in a MMJ and recreational use state

Even in a recreational and medicinal marijuana state, the smell of marijuana picked up by a dog is probable cause including a search of the trunk. The court rejected the claim that the dog would alert on both legal and potentially illegal quantities of marijuana. People v. Cox, 2017 CO 8, 2017 Colo. LEXIS 88 (Feb. 6, 2017), summary by the court:

Several factors led the trooper, who had stopped the defendant’s vehicle for a traffic infraction, to suspect that there might be evidence of illegal activity in the vehicle’s trunk, including the defendant’s unusual nervousness, an inconsistency in his account of his travels, the fact that he had two cell phones on the passenger seat of his vehicle, and the fact that the trooper’s canine alerted to the trunk for the presence of drugs. The trooper searched the trunk over the defendant’s objection, and found multiple sealed packages of marijuana. The defendant filed a motion to suppress the evidence found in the trunk, which the trial court granted. The trial court concluded that the canine alert could not be considered under the totality of the circumstances because the canine would alert to both legal and illegal amounts of marijuana. The trial court ultimately held that the trooper did not have probable cause to search the trunk. The supreme court now reverses. Under People v. Zuniga, 2016 CO 52, 372 P.3d 1052, issued before the trial court issued its order in this case, the canine alert should be considered as a part of the totality of the circumstances. Considering the totality of the circumstances, including the canine alert, the defendant’s unusual nervousness, an inconsistency in his account of his travels, and the fact that he had two cell phones on the passenger seat of his vehicle, there was probable cause to search the vehicle’s trunk.