COLORADO COURT OF APPEALS                                        2017COA93


Court of Appeals No. 16CA0050
Moffat County District Court No. 15CR16
Honorable Michael Andrew O’Hara, III, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kevin Keith McKnight,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division II
                          Opinion by JUDGE DAILEY
                          Berger, J., specially concurs
                         J. Jones, J., specially concurs

                           Announced July 13, 2017


Cynthia H. Coffman, Attorney General, Paul Koehler, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, John B. Plimpton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶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


                                     1
 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.

¶5    Because all of us agree that the court’s error in denying

 McKnight’s motion to suppress was not harmless beyond a

 reasonable doubt, we reverse the district court’s judgment of

 conviction and remand the case for further proceedings.

                            I. Background

¶6    The police recovered a pipe containing white residue from

 McKnight’s truck. The People charged him with possession of a

 controlled substance (based on the residue) and possession of drug

 paraphernalia. McKnight moved to suppress the evidence found in

 his truck, arguing that law enforcement officers violated his

 constitutional rights by conducting a dog sniff of his truck without


                                   2
 reasonable suspicion1 and by otherwise searching his truck without

 probable cause.

¶7    At the suppression hearing, Officer Gonzales testified that he

 saw a truck parked in an alley. The truck left the alley and

 eventually parked outside of a house for about fifteen minutes.

 This house, according to Officer Gonzales, had been the subject of a

 search roughly seven weeks earlier that had turned up illegal drugs.

 When the truck drove away, Officer Gonzales followed it, saw it turn

 without signaling, and pulled it over.

¶8    McKnight was driving the truck. Officer Gonzales said he

 recognized McKnight’s passenger from previous contacts with her,

 “including drug contacts” involving the use of methamphetamine.

 But when asked on cross-examination at what time, to his

 knowledge, the passenger had last used methamphetamine, Officer

 Gonzales declined to speculate about that and conceded that he




 1 He argued that reasonable suspicion was necessary because the
 dog sniff in and of itself was a “search” subject to state
 constitutional protections; he did not argue (nor does he argue here)
 that he was subjected to an unreasonably prolonged traffic stop.
 See Rodriguez v. United States, 575 U.S. ___, ___, 135 S. Ct. 1609,
 1614-15 (2015).

                                   3
  was “just aware that at some point in the past she had been known

  to [him] as a user of methamphetamine.”

¶9     At Officer Gonzales’ request, Sergeant Folks came to the scene

  with his certified drug-detection dog, Kilo. Kilo is trained to detect

  cocaine, heroin, ecstasy, methamphetamine, and marijuana. He

  indicates that he has detected the odor of one of these substances

  by exhibiting certain behavior — barking, for example. His

  indicative behavior, however, does not vary based on the particular

  substance or amount of the substance he has detected.

¶ 10   When Sergeant Folks deployed Kilo to sniff McKnight’s truck,

  Kilo displayed one of his trained indicators. Officers then told

  McKnight and the passenger to get out of the truck, searched it,

  and found a “glass pipe commonly used to smoke

  methamphetamine.”

¶ 11   After the district court denied McKnight’s suppression motion,

  the case proceeded to trial. A jury convicted McKnight of both

  counts.




                                     4
                              II. Discussion

                         A. Standard of Review

¶ 12   When reviewing a suppression order, we defer to the district

  court’s factual findings as long as evidence supports them, but we

  review de novo the court’s legal conclusions. Grassi v. People, 2014

  CO 12, ¶ 11.

                      B. Was Kilo’s Sniff a Search?

¶ 13   The Federal and State Constitutions give people the right to be

  free from unreasonable searches and seizures. U.S. Const. amend.

  IV; Colo. Const. art. II, § 7; People v. Zuniga, 2016 CO 52, ¶ 14.

¶ 14   “Official conduct that does not ‘compromise any legitimate

  interest in privacy’ is not a search subject to the Fourth

  Amendment.” Illinois v. Caballes, 543 U.S. 405, 408 (2005) (quoting

  United States v. Jacobsen, 466 U.S. 109, 123 (1984)). Any interest

  in possessing contraband is not legitimate. Id. And so official

  “conduct that only reveals the possession of contraband” does not

  compromise any legitimate privacy interest. Id. Applying that

  reasoning, the United States Supreme Court has held that

  employing a well-trained drug-detection dog during a lawful traffic

  stop does not implicate the Fourth Amendment because that is not


                                     5
  a search. Id. at 409-10. Likewise, our supreme court has held that

  such a sniff is not a search under our state constitution. People v.

  Esparza, 2012 CO 22, ¶ 6.

¶ 15      Indeed, in People v. Mason, 2013 CO 32, the supreme court

  said:

               It is now settled that walking a trained
               narcotics detection dog around a car that has
               not been unlawfully stopped or detained does
               not implicate the protections of either the
               Fourth Amendment or Article II, section 7 of
               the state constitution.

  Id. at ¶ 10.2

¶ 16      McKnight contends that a key premise underlying Caballes

  and Esparza — that a dog sniff reveals only contraband — is not


  2 In contrast, a government official’s walking a drug-detecting dog
  around a residence would implicate Fourth Amendment
  protections. See Florida v. Jardines, 569 U.S. ___, ___, 133 S. Ct.
  1409, 1417-18 (2013) (house); United States v. Whitaker, 820 F.3d
  849, 853-54 (7th Cir. 2016) (apartment). The difference is
  attributable in large part to the different expectations of privacy
  associated with a home and a car. See Jardines, 569 U.S. at ___,
  133 S. Ct. at 1414 (“[W]hen it comes to the Fourth Amendment, the
  home is the first among equals. At the Amendment’s ‘very core’
  stands ‘the right of a man to retreat into his own home and there be
  free from unreasonable governmental intrusion.’” (quoting
  Silverman v. United States, 365 U.S. 505, 511 (1961))); id. at ___
  n.1, 133 S. Ct. at 1419 n.1 (“[P]eople’s expectations of privacy are
  much lower in their cars than in their homes.”) (Kagan, J.,
  concurring).

                                     6
  true in this case. An alert from Kilo, he argues, is not so definitive:

  it may reveal that a person possesses something legal (an ounce or

  less of marijuana) or something illegal (illegal amounts of marijuana

  or another controlled substance).

¶ 17   In neither Mason nor Esparza did the court address the effect

  of Amendment 64, which changed the landscape upon which issues

  of the type raised here are decided. For while possession of

  marijuana by anyone in any amount remains a crime under federal

  law, see 21 U.S.C. § 844(a) (2012), this is no longer the case under

  state law. Because Amendment 64 legalized possession for

  personal use of one ounce or less of 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 (but not specific amounts) can reveal only the

  presence of “contraband.”3 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.


  3No question has been raised in this case about whether
  Amendment 64 is preempted by federal law.

                                      7
¶ 18   Because a dog sniff of a vehicle could infringe upon a

  legitimate expectation of privacy solely under state law, that dog

  sniff should now be considered a “search” for purposes of article II

  section 7 of the state constitution where the occupants are

  twenty-one years or older. Cf. Kyllo v. United States, 533 U.S. 27,

  34-40 (2001) (the use of a thermal imaging device to detect the

  growth of marijuana in a home was a “search” under the Fourth

  Amendment because the device was capable of detecting lawful

  activity); see Curious Theatre Co. v. Colo. Dep’t of Pub. Health &

  Env’t, 220 P.3d 544, 551 (Colo. 2009) (noting that local

  circumstances may justify applying a provision in the state

  constitution differently than a parallel provision in the Federal

  Constitution); People v. Parks, 2015 COA 158, ¶ 21 n.3 (noting

  instances where it was “decided that [a] governmental intrusion

  constituted a search under the State Constitution even though it

  did not constitute a search under the Federal Fourth

  Amendment”).4


  4 It would still not be considered a “search” under the Fourth
  Amendment, though. No one could contend, for instance, that a
  federal agent’s use of dog to sniff a car for the presence of any
  amount of marijuana would constitute a “search” under the Federal

                                     8
       C. What Level of Justification Was Required for the Search?

¶ 19   Prior to Esparza, the supreme court had indicated that,

  because of its minimally intrusive nature, a warrantless “search”

  effected by a dog sniff had to be supported by “a reasonable

  articulable suspicion that the item sniffed contains evidence of a

  crime.” People v. Reyes, 956 P.2d 1254, 1256 n.1 (Colo. 1998),

  abrogated by Esparza, 2012 CO 22; see also People v. Boylan, 854

  P.2d 807, 811 (Colo. 1993) (“[A] dog-sniff search need be justified

  not by probable cause sufficient to obtain a search warrant, but

  instead by reasonable suspicion, similar to that required to stop

  and frisk a person suspected of involvement in imminent criminal

  activity.”), abrogated by Esparza, 2012 CO 22; People v. Unruh, 713

  P.2d 370, 379 (Colo. 1986) (“[T]he balance between governmental

  and individual interests in this case can best be struck by requiring

  only reasonable suspicion as a prerequisite for the sniff search.”),

  abrogated by Esparza, 2012 CO 22.

¶ 20   Based on this reasoning, we conclude that “reasonable

  suspicion” is the state constitutional standard which applies to

  Constitution. See Illinois v. Caballes, 543 U.S. 405, 409 (2005).
  And Fourth Amendment protections do not change simply because
  the actor using a drug-detecting dog changes.

                                    9
  searches effected by dog sniffs of the exterior of a vehicle. Thus, in

  determining whether the police could subject McKnight’s truck to a

  dog sniff, the question is whether, prior to the dog sniff, they had

  grounds to reasonably suspect that evidence of illegal activity would

  be found in the truck.

¶ 21      The reasonable suspicion standard requires “considerably less

  than proof of wrongdoing by a preponderance of the evidence and is

  less demanding even than the ‘fair probability’ standard for

  probable cause.” People v. Polander, 41 P.3d 698, 703 (Colo. 2001)

  (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). It is satisfied

  if “‘the police have specific and articulable facts, greater than a

  mere hunch, to support’ their belief that the person to be stopped is

  or may have been involved in criminal activity.” People v. Huynh,

  98 P.3d 907, 912 (Colo. App. 2004) (quoting Boylan, 854 P.2d at

  812).

¶ 22      “In considering whether reasonable suspicion exists, the court

  looks at the totality of the circumstances, the specific and

  articulable facts known to the officer at the time of the encounter,

  and the rational inferences to be drawn from those facts.” People v.

  Garcia, 251 P.3d 1152, 1158 (Colo. App. 2010).


                                     10
¶ 23   Here, the pertinent circumstances known to the police before

  the dog was called upon to sniff McKnight’s truck were that (1)

  McKnight had sat parked for fifteen minutes outside a house in

  which illegal drugs had been found seven weeks before and (2)

  McKnight had a passenger in the truck who had used

  methamphetamine “at some point in the past.” Those

  circumstances did not raise a reasonable suspicion that evidence of

  illegal activity would be found in McKnight’s truck. The officer

  observed no one approach the truck from the house or approach

  the house from the truck. The officer had no objective basis, then,

  for suspecting that the truck’s occupants had taken drugs into the

  truck from the house or from anywhere else for that matter.

¶ 24   Because, in our view, the police lacked the requisite

  reasonable suspicion to subject McKnight’s truck to a dog sniff, the

  dog sniff was invalid, and the methamphetamine recovered as a

  result thereof should have been suppressed. The People do not

  contend, and we cannot conclude, that “the evidence properly

  received against [McKnight was] so overwhelming that the

  constitutional violation was harmless beyond a reasonable doubt.”




                                   11
  Bartley v. People, 817 P.2d 1029, 1034 (Colo. 1991). We must

  reverse. See id.

                               III. Conclusion

¶ 25   The judgment of conviction is reversed, and the case is

  remanded for further proceedings consistent with the views

  expressed in this opinion.

       JUDGE BERGER specially concurs.

       JUDGE J. JONES specially concurs.




                                     12
       JUDGE BERGER, specially concurring.

¶ 26   I agree with the majority’s holding that there was no

  reasonable suspicion supporting the dog sniff and that reasonable

  suspicion was required because the dog was trained to alert both to

  contraband and non-contraband.

¶ 27   I write separately for two reasons. First, while I do not think it

  is necessary to reach the probable cause determination — the issue

  upon which Judge Jones would decide this case — I agree with

  Judge Jones’ conclusion that probable cause was absent (although

  it is a very close question).

¶ 28   Second, I think it is useful to explain how a person may have

  an enforceable expectation of privacy under state law while federal

  law provides no such reasonable expectation.

¶ 29   The people of Colorado spoke clearly when they adopted

  Amendment 64. It is the duty of Colorado courts to give effect to

  that enactment. In re Great Outdoors Colo. Tr. Fund, 913 P.2d 533,

  538 (Colo. 1996). The Attorney General does not contend that

  Amendment 64 is displaced by the Supremacy Clause of the Federal

  Constitution. Under these circumstances, it is incumbent on us to

  apply Amendment 64. Doing so creates a dichotomy between the


                                    13
  reasonable expectations of privacy under state and federal law

  because of the different laws enforced by state and federal law

  enforcement officers.

¶ 30   The “general rule” is that state law does not preclude state and

  local police from enforcing federal law. See, e.g., Miller v. United

  States, 357 U.S. 301, 305 (1958); Johnson v. United States, 333

  U.S. 10, 15 n.5 (1948); Gonzales v. City of Peoria, 722 F.2d 468,

  474 (9th Cir. 1983), overruled on other grounds by Hodgers-Durgin v.

  de la Vina, 199 F.3d 1037 (9th Cir. 1999). However, while state law

  generally allows state and local law enforcement officers to enforce

  federal law, it need not do so. “It has long been held that power

  may be conferred upon a state officer, as such, to execute a duty

  imposed under an act of Congress, and the officer may execute the

  same, unless its execution is prohibited by the Constitution or

  legislation of the state.” Dallemagne v. Moisan, 197 U.S. 169, 174

  (1905).

¶ 31   Because Amendment 64 legalized possession of up to one

  ounce of marijuana for personal use by persons twenty-one years of

  age or older, it also “curtail[ed] police authority to enforce the

  Federal prohibition of possession of [up to one ounce] of


                                     14
  marijuana.” Commonwealth v. Craan, 13 N.E.3d 569, 578 (Mass.

  2014). Part of Amendment 64’s stated purpose was to increase “the

  efficient use of law enforcement resources” and “individual

  freedom.” Colo. Const. art. XVIII, § 16(1)(a). Allowing state and

  local officers to continue to enforce the federal prohibition would

  directly contravene this purpose. We must give effect to the voters’

  intent, Bruce v. City of Colorado Springs, 129 P.3d 988, 992 (Colo.

  2006), and we will not adopt an interpretation that contravenes the

  purpose of Amendment 64.

¶ 32   Thus, while a person twenty-one years of age or older in

  possession of less than an ounce of marijuana does not have a

  reasonable expectation of privacy under federal law with respect to

  law enforcement activities of federal officers, see Illinois v. Caballes,

  543 U.S. 405, 408-09 (2005), he or she does have a reasonable

  expectation of privacy under state law with respect to law

  enforcement activities of state officers.




                                     15
       JUDGE J. JONES, specially concurring.

¶ 33   I concur in the result reached by the majority. But I do so

  because it seems to me that the police officers lacked probable

  cause to search McKnight’s truck.

¶ 34   Courts have recognized that an alert from a dog trained to

  detect several substances, including marijuana, by itself may

  amount to probable cause justifying a search of a vehicle. Florida v.

  Harris, 568 U.S. 237, 246-47 (2013); People v. Esparza, 2012 CO

  22, ¶ 12. But is that still true for purposes of article II, section 7 of

  the Colorado Constitution, given that state law now generally allows

  anyone who is at least twenty-one years old to possess small

  amounts of marijuana for personal use? I consider that question,

  which our supreme court did not address directly in People v.

  Zuniga, 2016 CO 52, and People v. Cox, 2017 CO 8, and conclude

  that such a dog’s alert alone no longer supplies probable cause

  where the occupants of the vehicle are twenty-one years or older

  and the officer conducting the search is not a federal officer.

¶ 35   In this case, a dog’s alert was the only circumstance of any

  real weight giving rise to the police officers’ decision to search

  McKnight’s truck. Therefore, I also conclude that the district court


                                     16
  erroneously denied McKnight’s motion to suppress the evidence

  found during that search. And because that error was not

  harmless beyond a reasonable doubt, I agree with the majority that

  we must reverse the district court’s judgment of conviction and

  remand the case for a new trial.

                       I. Was Kilo’s Sniff a Search?

¶ 36   As the majority points out, the United States Supreme Court,

  in Illinois v. Caballes, 543 U.S. 405, 408-10 (2005), held that a

  drug-detection dog’s sniff of a vehicle is not a search under the

  Fourth Amendment, and the Colorado Supreme Court, in Esparza,

  ¶ 11, held that such a sniff is not a search under our state

  constitution.

¶ 37   McKnight contends that a key premise underlying Caballes

  and Esparza — that a dog sniff reveals only contraband — is not

  true in this case. An alert from Kilo, he argues, is not so definitive:

  it may reveal that a person possesses something legal (an ounce or

  less of marijuana) or something illegal (illegal amounts of marijuana

  or another controlled substance). But I need not decide whether

  Kilo’s sniff constituted a search because, even if it did not, the

  officers lacked probable cause to search McKnight’s truck.


                                     17
          II. Did Kilo’s Alert, By Itself, Create Probable Cause?

¶ 38   The Federal and State Constitutions give people the right to be

  free from unreasonable searches and seizures. U.S. Const. amend.

  IV; Colo. Const. art. II, § 7; Zuniga, ¶ 14. A warrantless search is

  presumptively unreasonable, violating the Fourth Amendment

  unless it falls under an exception to the warrant requirement.

  People v. Vaughn, 2014 CO 71, ¶ 14. The automobile exception

  allows police officers to search an automobile without a warrant if

  they have probable cause to believe that it contains evidence of a

  crime. Zuniga, ¶ 14.

¶ 39   “A police officer has probable cause to conduct a search when

  ‘the facts available to [the officer] would warrant a [person] of

  reasonable caution in the belief’ that contraband or evidence of a

  crime is present.” Harris, 568 U.S. at 243 (second alteration in

  original) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)

  (plurality opinion)). “[T]he information necessary to support a

  finding of probable cause need not rise to the level of certainty.”

  Mendez v. People, 986 P.2d 275, 280 (Colo. 1999). In the end,

  “probable cause is a commonsense concept that requires judges to

  consider the totality of the circumstances to determine ‘whether a


                                     18
  fair probability exists that a search of a particular place will reveal

  contraband or evidence of a crime.’” Zuniga, ¶ 16 (quoting Mendez,

  986 P.2d at 280).

¶ 40   In Zuniga, the Colorado Supreme Court applied the probable

  cause standard under circumstances similar to those in this case.

  A trooper searched the defendant’s vehicle after a drug-detection

  dog — trained to detect marijuana and other controlled substances

  — alerted to the vehicle. Id. at ¶ 6. Even though possessing

  marijuana does not violate Colorado law under some

  circumstances, the court concluded that the dog’s alert “suggested

  that illegal drugs were present in the vehicle” and “contribut[ed] to

  the existence of probable cause.” Id. at ¶ 29. And the court

  ultimately concluded that the trooper had probable cause to search

  the vehicle based on the dog’s alert, the two passengers’

  “remarkably disparate accounts” of why they were in Colorado, the

  passengers’ “extreme nervousness,” and the heavy odor of raw

  marijuana. Id. at ¶¶ 26-30.

¶ 41   More recently, in Cox, the court reiterated that a dog’s alert is

  part of the “totality of the circumstances” that the district court

  must consider, and similarly concluded that four facts combined to


                                     19
  establish probable cause to search the defendant’s vehicle. Cox,

  ¶¶ 15, 17. These four facts were (1) an alert from a dog trained to

  detect marijuana and other controlled substances; (2) the

  defendant’s unusual nervousness; (3) inconsistencies in the

  defendant’s description of his travels; and (4) the presence of two

  cell phones in the defendant’s vehicle. Id. at ¶¶ 15-22.

¶ 42   Before Zuniga, both the United States Supreme Court and the

  Colorado Supreme Court had recognized that an alert from a

  reliable drug-detection dog by itself might establish probable cause.

  See Harris, 568 U.S. at 246-47; Esparza, ¶ 12. In both Zuniga and

  Cox, however, the supreme court expressly did not consider directly

  whether, given the recent changes to marijuana’s status in

  Colorado, an alert from a dog trained to detect marijuana and other

  controlled substances by itself establishes probable cause to search

  a vehicle. Cox, ¶ 22 n.5; Zuniga, ¶ 30 n.6. I conclude that, for

  purposes of the Colorado Constitution, it does not.

¶ 43   Zuniga and Cox leave no doubt that Kilo’s alert supplied some

  level of suspicion. “A possible innocent explanation or lawful

  alternative may add a level of ambiguity to a fact’s probative value

  in a probable cause determination, but it does not destroy the fact’s


                                    20
  usefulness outright and require it to be disregarded.” Zuniga, ¶ 20.

  Because an alert from Kilo might be the product of legal or illegal

  conduct, his alert added to the probability that a search would

  reveal evidence of a crime. See id. at ¶ 29; see also Cox, ¶ 17.

¶ 44   But although Kilo’s alert increased the likelihood that

  McKnight’s truck contained evidence of a crime, a significant level

  of ambiguity arose from the combination of Kilo’s training and

  Colorado’s marijuana laws. At bottom, Kilo’s alert communicated

  only that he detected either a legal substance or an illegal

  substance. That information would not, by itself, warrant a person

  of reasonable caution to believe that McKnight’s truck contained

  contraband or evidence of a crime. See Harris, 568 U.S. at 242-44;

  State v. Shabeeb, 194 Wash. App. 1032, ¶ 20, 2016 WL 3264421, at

  *3 (Wash. Ct. App. 2016) (unpublished opinion) (“The State

  concedes and we agree that since the decriminalization of

  marijuana, a K–9 alert standing alone no longer establishes

  probable cause when the K–9 was trained to alert on multiple

  narcotics, one of which is marijuana.”).

¶ 45   I am not persuaded by the People’s reliance on Mendez, in

  which the supreme court determined that officers had probable


                                    21
  cause to search the defendant’s motel room after smelling burning

  marijuana emanating from the room. 986 P.2d at 280. At the time,

  medicinal use of marijuana provided an affirmative defense to a

  possession charge under Colorado law. Id. at 281 n.4. Even so, the

  court rejected the defendant’s argument that the smell of burning

  marijuana did not create probable cause because the officers could

  not determine whether the room’s occupant was using marijuana

  illegally or medicinally. Id. In my view, legalizing marijuana (to

  some degree) creates far more ambiguity as to whether possessing it

  is probative of criminal conduct than does simply providing an

  affirmative defense for its medicinal use.

¶ 46   For similar reasons, the cases from other states on which the

  People rely carry little force. State v. Smalley, 225 P.3d 844, 847-48

  (Or. Ct. App. 2010), was decided when possessing less than an

  ounce of marijuana in Oregon, though not a criminal offense,

  remained a “violation.” See also Bowling v. State, 134 A.3d 388,

  394-98 (Md. Ct. Spec. App. 2016) (because possession of small

  amounts of marijuana remains a civil violation, all marijuana is

  contraband). And People v. Strasburg, 56 Cal. Rptr. 3d 306, 309

  (Cal. Ct. App. 2007), was decided when California law permitted a


                                    22
  “qualified patient” to possess up to eight ounces of marijuana.

  Neither Smalley nor Strasburg addressed the legal landscape that

  we face in Colorado, where people who are at least twenty-one years

  old may legally possess up to an ounce of marijuana for personal

  use.

¶ 47     I recognize, as the People point out, that possessing any

  amount of marijuana remains illegal under federal law. Coats v.

  Dish Network, LLC, 2015 CO 44, ¶ 19. Nevertheless, I believe that,

  at least for purposes of determining whether there is probable cause

  under the Colorado Constitution, Zuniga makes clear that

  Colorado’s marijuana laws have added a level of ambiguity to the

  probative value of evidence suggesting that a person possesses

  marijuana. See Zuniga, ¶¶ 20, 23. So I could not, consistent with

  Zuniga, simply conclude that marijuana’s federal status clarifies the

  ambiguity created by Kilo’s readiness to alert if he detects

  marijuana.

¶ 48     For the foregoing reasons, I conclude that a drug-detection

  dog’s alert does not alone give a Colorado state law enforcement




                                     23
  officer probable cause to conduct a search of a vehicle where the

  occupants are at least twenty-one years old.1

                III. Did the Totality of the Circumstances
                Establish Probable Cause for the Search?

¶ 49   Though Kilo’s alert did not alone give probable cause for the

  search of McKnight’s truck, it was of course indicative of possible

  criminal activity. Id. at ¶ 29. So the question remains whether the

  totality of the circumstances, including Kilo’s alert, established

  probable cause for the search. See id. at ¶ 16.

¶ 50   The People rely on only two additional facts to support a

  finding of probable cause — that McKnight parked outside a house

  in which drugs had been found and that Officer Gonzales knew that

  McKnight’s passenger had used methamphetamine “at some point

  in the past.” A close look shows that these facts are too vague and

  attenuated to have suggested that McKnight’s truck contained

  evidence of criminal activity.



  1 The result would be different if the dog was not trained to detect
  marijuana, or if the vehicle’s occupants were not at least twenty-one
  years old. And I do not opine as to whether the change in
  Colorado’s marijuana laws affects the Fourth Amendment analysis;
  like the majority, my analysis is limited to the Colorado
  Constitution.

                                    24
¶ 51   That illegal drugs (the motions hearing transcript is silent as

  to what kind or how much) had been found in the house more than

  seven weeks earlier says little, if anything, about whether it

  contained illegal drugs when McKnight parked nearby. Moreover,

  Officer Gonzales did not say that anyone in McKnight’s truck

  approached the house or that anyone from inside the house

  approached McKnight’s truck. McKnight’s mere parking by a house

  that had once contained illegal drugs simply did not suggest that

  McKnight’s truck had illegal drugs in it. See People v. Revoal, 2012

  CO 8, ¶ 16 (“standing alone, a history of past criminal activity in a

  locality does not justify suspension of the constitutional rights of

  everyone, or anyone, who may subsequently be in that locality”).

¶ 52   Similarly unsuspicious is that McKnight’s passenger had used

  methamphetamine sometime in the past. For all we know, the

  passenger may have been clean for years before Officer Gonzales

  saw her in McKnight’s truck. In any case, the information that

  Officer Gonzales conveyed about the passenger’s past drug use did

  not suggest that the passenger or McKnight had illegal drugs when

  Officer Gonzales stopped them. Cf. United States v. Kennedy, 427

  F.3d 1136, 1142 (8th Cir. 2005) (“information of an unknown and


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  undetermined vintage relaying the location of mobile, easily

  concealed, readily consumable, and highly incriminating narcotics

  could quickly go stale in the absence of information indicating an

  ongoing and continuing narcotics operation”).

¶ 53   I am aware that I must consider these facts together with

  Kilo’s alert in assessing whether there was probable cause. Cox,

  ¶ 14. But after doing so I am simply not convinced that there was

  probable cause. In my view, the additional facts do nothing to clear

  up the ambiguity arising from Kilo’s alert.

¶ 54   In sum, I conclude that the information available to the

  officers who searched McKnight’s truck did not give them probable

  cause to believe that it contained evidence of a crime. For that

  reason, the district court erred when it denied McKnight’s motion to

  suppress the evidence obtained from the search. See id. The

  People do not contend, and I cannot conclude, that “the evidence

  properly received against [McKnight was] so overwhelming that the

  constitutional violation was harmless beyond a reasonable doubt.”

  Bartley v. People, 817 P.2d 1029, 1034 (Colo. 1991). Therefore, I

  agree with the majority that we must reverse. See id.




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