Use of a drug dog on a car is a “search” in marijuana recreational use Colorado, and a dog alert which could be of either legal or illegal substances is not probable cause. People v. McKnight, 2017 COA 93, 2017 Colo. App. LEXIS 879 (July 13, 2017) (divided opinion):
[*1] Since 2012, it has not been a violation of Colorado law for people who are at least twenty-one years old to possess up to one ounce of marijuana for personal use. Colo. Const. art. XVIII, § 16(3)(a) (Amendment 64). To be clear, such possession is neither a criminal violation nor a civil violation.
[*2] This case presents two questions arising from our state’s marijuana laws and law enforcement’s use of dogs trained to detect marijuana and other controlled substances. First, does deploying a dog trained to detect marijuana to sniff a legitimately stopped vehicle constitute a “search” for purposes of the constitutional prohibitions of unreasonable searches? If so, law enforcement may not deploy such a dog without reasonable suspicion of criminal activity. Second, did the dog’s alert in this case give police probable cause to search Kevin Keith McKnight’s truck given that the dog was trained to alert if he detected either legal or illegal substances?
[*3] Two of us (Dailey and Berger, JJ.) agree with McKnight in answer to the first question, that is, that under our state constitution, the deployment of the dog here was a “search” requiring reasonable suspicion of criminal activity. And because the totality of the relevant circumstances did not give police reasonable suspicion to conduct a dog sniff of his truck, we conclude that the district court erred in denying his motion to suppress evidence found in the truck.
[*4] But two of us (J. Jones and Berger, JJ.) would also agree with McKnight in answer to the second question, that is, that the dog’s alert, in combination with the other relevant circumstances, did not give the police probable cause to search his truck, and, for that reason, the district court erred in denying his motion to suppress evidence found in the truck.