Colorado courts tighten legal leash on drug dogs —with contested implications for cannabis

Posted on May 24th, 2019 by Bill Weinberg and tagged , , , , , , .

scalesColorado's Supreme Court ruled that thanks to the constitutional changes instated by the 2012 cannabis legalization vote, police require probable cause before using drug-sniffing dogs. A dissenting opinion holds that the decision oversteps federal authority, and undermines the jurisprudential basis for Colorado legalization. Are these fears realistic?

A Colorado Supreme Court ruling on the use of dogs in drug searches appears to be a big win for privacy rights. But some are warning that it invites federal action that could threaten cannabis legalization in the Centennial State.

The May 20 ruling found that using police dogs trained to sniff out cannabis itself constitutes a search—and therefore, a dog's "alert" cannot be used as probable cause for a more extensive search. In fact, the ruling held, the very use of the dog requires probable cause.

"The dog's sniff arguably intrudes on a person's reasonable expectation of privacy in lawful activity," Supreme Court Justice William Hood wrote for the majority in the 4-3 decision. "If so, that intrusion must be justified by some degree of particularized suspicion of criminal activity."

Privacy implications of legal cannabis
The case stems from a 2015 arrest in Moffat County, in the state's northwest corner, as the Denver Post relates. A police officer in the town of Craig stopped a truck that was deemed to be suspicious, and called in a K-9 unit from the county sheriff's department for a sniff test. The dog, amusingly named Kilo, alerted for drugs in the truck. Deputies searched the vehicle, and uncovered a meth pipe with some residue. The driver, Kevin McKnight, was taken into custody, and later convicted of two drug-possession charges.

But here's the catch. Kilo was trained to alert to cannabis as well as methamphetamine, cocaine, heroin and so on. So McKnight’s lawyers appealed, arguing that the deputies' search was illegal because Kilo could have been alerting to a legal quantity of cannabis. The deputies therefore didn't have enough evidence to justify a search the truck.

The Colorado Supreme Court agreed, overturning McKnight's convictions.

“Because there was no way to know whether Kilo was alerting to lawful marijuana or unlawful contraband, Kilo’s sniff violated McKnight’s reasonable expectation of privacy,” the majority opinion stated.

Does the ruling (paradoxically) threaten Colorado legalization?
But did the court overstep, inviting a federal backlash that could actually threaten Colorado's cannabis legalization? That's what the Colorado Sun argues, in an article with the following ominous headline: "Did the Colorado Supreme Court just throw the state's marijuana-legalization regime into question? The chief justice seems to think so."

Chief Justice Nathan Coats, in his strongly worded dissent, warned that the ruling had basically thrown down the gauntlet to the feds. “I object specifically to its radical reconstruction, in the wake of our recent marijuana initiative, of the state's own constitutional Bill of Rights,” he wrote..

The majority in People v. McKnight cited Amendment 64—the constitutional change approved by the voters to legalize cannabis in 2012—as extending the privacy protections in the state’s Bill of Rights. But because the substance that was actually found was methamphetamine, Coats argued, the ruling effectively extended privacy protections to that too. It means that "an individual is held to have a reasonable expectation of privacy in the commission of [a] federal crime." And this invites the federal response that US law "preempts" state law.

"I am particularly concerned that in going to such lengths to craft a rationale for imposing limitations on the use of drug detection dogs, the majority unwittingly exposes not only the marijuana initiative itself but even the state’s constitutional Bill of Rights to a much greater risk of federal preemption than would previously have been the case," Coats stated.

And while the case did not concern federal law, which could provide a safeguard against the federal courts taking it up, Coats isn't so sure. "While resting a decision solely on state grounds may generally be an effective technique for insulating state courts from further federal review, that is clearly not the case with regard to the supremacy of federal law," he wrote.

Favorable precedent from SCOTUS
How realistic a fear is this? While under the current reactionary and erratic administration nothing can be ruled out, the correct answer is probably.... Not very.

The US Supreme Court actually issued its own favorable ruling on the use of drug dogs in 2015. In the 6-3 ruling that April, the country's highest court found that the Constitution forbids police from holding a suspect without probable cause—even for the few extra minutes it takes for a drug dog to arrive.

Writing for the majority, Justice Ruth Bader Ginsburg stated: "We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures."

The case, Rodriguez v. United States, concerned by a man who was pulled over for driving on the shoulder of a Nebraska highway. After the officer issued a warning for bad driving, he asked whether he could walk a drug dog around the vehicle. Motorist Dennys Rodriguez refused. The officer nonetheless detained him for "seven or eight minutes" until a backup unit arrived with the dog—who promptly alerted for drugs. Rodriguez was arrested for methamphetamine possession. The Supreme Court overturned his conviction. Justices Clarence Thomas, Samuel Alito and Anthony Kennedy dissented.

The US Supreme Court has of course tilted further to the right with the ascension of Brett Kavanaugh in October—replacing Kennedy, held to be the swing vote on the court. But in the Rodriguez decision, Kennedy dissented, while conservatives John Roberts and Antonin Scalia sided with the majority. Strictly civil libertarian cases such as these often fail to break down along predictable left-right lines.

Justice Department weighs in for Colorado legalization —really
And within days of the Colorado high court decision came another very favorable sign from the feds—this time from the Justice Department, and directly concerning cannabis in Colorado.

In a brief filed May 22, US Solicitor General Donald Verrilli Jr. urged the Supreme Court not to hear the case brought by Nebraska and Oklahoma challenging Colorado's cannabis legalization as contrary to federal law. The case had been brought directly to the high court, as a matter between states, back in 2014. It has since been awaiting a decision from the justices on whether to take it on.

As the Denver Post reports, Verrilli wrote that case "should be denied because this is not an appropriate case for the exercise of this Court's original jurisdiction. Entertaining the type of dispute at issue here—essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State—would represent a substantial and unwarranted expansion of this Court’s original jurisdiction."

Failure to hear the case would kill it, and leave Colorado cannabis legalization intact. With favorable signs from both the Supreme Court and the Justice Department, a federal "preemption" action against Amendment 64 is probably a long shot.

Cross-post to Cannabis Now

Photo by the 
Mad Pothead 


Nor are drug dogs always reliable...

Bill Weinberg's picture The possibility of "false positives" with drug-sniffing dogs is also a consideration with implications for privacy rights and presumption of innocence, as have noted....
Comment by Bill Weinberg on Jun 7th, 2019 at 8:46 pm

Now the bad news from Colorado...

Global Ganja Report's picture In one of the largest actions ever taken against Colorado’s illicit cannabis market, federal agents back up by local police arrested dozens of people, conducted some 250 searches and seized over 80,000  plants and 4,500 pounds of harvested herb. (Cannabis Now)
Comment by Global Ganja Report on Jun 7th, 2019 at 9:06 pm

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