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Court: Pot-sniffing dog not enough to conduct car search

Thanks to Amendment 64, Coloradans over the age of 21 can now possess one ounce of less or marijuana for personal use without having to fear criminal prosecution under Colorado law. Unfortunately, though, drug-sniffing dogs may not have received this memo -- meaning many may have to be retrained, particularly in light of a recent court opinion.

Last week, the Colorado Court of Appeals issued a decision stating that if a dog has been trained to smell for marijuana in addition to other drugs, then police officers will need more than an alert by the dog before they can conduct a search of a vehicle without permission.

This particular decision is linked to a 2015 incident in which an individual was pulled over by police and a drug-sniffing dog named Kilo alerted the officers of a possible illegal substance. Following this alert, the police conducted a search of the vehicle, during which they allegedly found a glass pipe that contained some white drug residue.

However, the court noted one very big problem with this case; the dog could not indicate whether he smelled marijuana -- which is now legal under state law -- or some other illegal drug. Specifically, the court stated:

"Because Amendment 64 legalized [...] marijuana by persons twenty-one years of age or older in Colorado, it is no longer accurate to say, at least as a matter of state law, that an alert by a dog which can detect marijuana [...] can reveal only the presence of "contraband." A dog sniff could result in an alert with respect to something for which, under Colorado law, a person has a legitimate expectation of privacy, i.e., the possession of one ounce or less of marijuana for personal use."

The court went on to explain that the police didn't even have reasonable suspicion to use the drug sniffing dog in the first place, noting that the only facts known to the police before the dog was called were that:

  • The alleged perpetrator was parked outside a house in which drugs were discovered seven weeks before, and
  • The alleged perpetrator had a vehicle passenger who had used meth "at some point in the past."

Based on these facts, the court ultimately determined that the police didn't have the "reasonable suspicion" required to conduct the dog sniff, and therefore any illegal drug recovered during this illegal search should be suppressed.

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