Articles Posted in 4th Amendment Search and Seizure

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amon-1405220-1A recent Colorado Court of Appeals case involving Kilo the drug sniffing dog held that a dog’s alert alone does not establish the Probable Cause necessary to conduct the search of a vehicle occupied by individuals 21 years of age or older.

Under Amendment 64 of the Colorado Constitution, it is legal for people who are 21 years of age or older to possess up to 1 ounce of Marijuana for personal use.  This amendment went into effect in 2012.

In the case involving Moffat County’s Kilo the drug sniffing dog, a truck was parked in an alleyway and thereafter pulled in front of a house and parked for 15 minutes.  The house that the truck had parked in front of had been searched 7 weeks previously and illegal drugs were found.  When the truck drove away, cops pulled it over because the driver allegedly didn’t use his turn signal.

Upon contact, the cops claim to have recognized the passenger in the truck as a user of Meth.  The cops subsequently turned Kilo loose on the truck and then received an “alert” indicating that drugs were present.  It’s important to note that Kilo is trained to detect Meth, Weed, Ecstasy, Cocaine, and Heroin.  Kilo’s alert means that he detected one of the aforementioned substances but it’s unknown which one or what quantity.  Thus, the alert is simply a generalized alert.

The cops then ordered the occupants out of the truck and searched it.  While searching, the cops found a Meth pipe and charged the driver with possession of the pipe and of a controlled substance.

Previous Colorado cases have held that reasonable suspicion is required prior to a dog sniff search of the exterior of a vehicle.  In other words, the police must have specific and articulable facts to support their belief that the person stopped is involved with or may have been involved with criminal activity.  In determining whether reasonable suspicion exists, courts will look at the totality of the circumstances, the specific and articulable facts, and the rational inferences from those facts.

The driver of the truck attempted to suppress the evidence found in his truck by arguing that Kilo’s sniff of his truck was not supported by reasonable suspicion and that the search of his truck’s contents was not supported by probable cause.

Kilo’s alert indicated that he had detected either an illegal or legal substance.  Since the legalization of Marijuana, a K-9’s alert alone no longer establishes probable cause if the K-9 was trained to detect various drugs including Marijuana.

The result may be different if a K-9 is not trained to detect Marijuana or the occupants of the vehicle are not at least 21 years of age.

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file000724011636-1024x768If a Colorado police officer stops a motorist, she must have legal grounds to do so. In the DUI context, this typically results from stopping the motorist for some minor traffic violation (an investigatory stop). Common examples include speeding 5 miles per hour over the limit, tail light out, headlight out, license plate bulb out, weaving, driving too slow, etc. These minor traffic infractions often times are a segway into the investigation of DUI, a much more serious offense.

An investigatory stop is less than an arrest, but more than a consensual encounter. It is an “intermediate” form of police intrusion. Police officers regularly look for minor traffic violations as reasons to stop a motorist and investigate further for a possible DUI.

However, if a police officer initially stops a motorist for a traffic violation and has reasonable suspicion for the stop, but that reasonable suspicion later “evaporates”, that police officer cannot continue with her investigation according to two (2) very important Colorado decisions in this area. Examples of the evaporation of reasonable suspicion include a police officer who stops a motorist for not having a license plate, but after she approaches the motorist she sees a valid temporary permit in the back window of the truck. The courts say that the investigation by the cop ends at that point because the reasonable suspicion has evaporated.

Another example is a motorist who is stopped for a cracked windshield. After the stop, but during the course of the investigation the officer determines that the windshield really doesn’t obstruct the driver’s view and therefore is not a violation of law. In that situation, the courts have held that the investigation must cease, because the reason for the initial stop is no longer valid.

Another example might be that the officer believes that both of the driver’s headlamps are not working, but later determines that he made a mistake and both headlamps are functional. Again here, the reason for the stop has evaporated. Once the officer determines that his stop is not valid, he must cease further investigation of the stopped driver.

In the landmark case of People v. Cerda, an officer stopped a motorist for a cracked windshield and then later determined that the driver was driving with a suspended driver’s license. However, over the course of the investigation, the officer determined that the crack in the windshield was not significant enough to issue a ticket. The Court determined that all evidence obtained from the stop had to be suppressed because the stop was not a valid investigatory stop.

Similarly in People v. Redinger, a police officer stopped a driver for a suspected motor vehicle violation, but later determined that his suspicion was not valid. The Court determined that requiring the driver to produce information without reasonable suspicion or probable cause was illegal.

I previously represented a client who was charged with his second lifetime DUI. In light of Colorado’s enhanced sentencing penalties, he was facing mandatory jail time and loss of his driver’s license, which also potentially led to the loss of his employment. Thus, the stakes were incredibly high.

According to the officer, my client was seen driving in his neighborhood with only one headlamp working on his truck. However, both headlamps were later determined to be working, thus the reason for the stop had evaporated. This argument led to the successful dismissal of all criminal charges against my client. Thus, the evaporation of reasonable suspicion is alive and well and it can lead to the dismissal of charges if the original contact was determined to be unfounded.
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The U.S. Supreme Court recently ruled that a police drug-sniffing dog could not be used without a warrant to search near a suspected drug dealer’s home. In Florida v. Jardines, the Supreme Court upheld a suppression ruling in a marijuana case where the police used a drug sniffing dog outside the home of a suspected drug dealer and then got a warrant to search the home based upon the alerts of the dog.

In a 5-4 ruling, the Court found that using a dog to investigate a home and its surroundings required a warrant, as it was a “search” within the meaning of the 4th Amendment. As Justice Scalia indicated, the Fourth Amendment extends no both a house and its surroundings.

The Court reasoned that there is an implicit license for visitors (whether police or private citizens) to approach the front door of a house and knock, and then wait to be greeted and promptly leave. However, the Court reasoned that there was no implicit license for a trained police dog to explore around the home to look for incriminating evidence.

One of the important things to note from this decision is that it pertains to using drug-sniffing dogs to investigate the immediate surroundings of a home. Different rules apply to the use of drug-sniffing dogs in relation to vehicle stops or at the airport.

This Jardines decision reinforces the rights of homeowners to be free from unreasonable searches and seizures in not only their home, but also the area surrounding their home.
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