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                                                        ADVANCE SHEET HEADNOTE
                                                                      May 20, 2019

                                        2019 CO 37

No. 18SA208, People v. Gadberry—Searches and Seizures—Drug-Detection Dog—
Probable Cause.

         At issue in this interlocutory appeal is whether law enforcement needed probable

cause before deploying a drug-detection dog that was trained to alert to both marijuana

and other substances. Adopting the analytical framework announced today in the

companion case, People v. McKnight, 2019 CO 36, __ P.3d __, the supreme court holds that

the officers needed probable cause before deploying such a drug-detection dog, and a

defendant’s statements regarding the presence or non-presence of marijuana does not

change this. Because the officers did not have probable cause, the drug-detection dog

never should have been deployed. Accordingly, we affirm the trial court’s suppression

order.
                      The Supreme Court of the State of Colorado
                      2 East 14th Avenue • Denver, Colorado 80203

                                       2019 CO 37

                        Supreme Court Case No. 18SA208
                     Interlocutory Appeal from the District Court
                  Mesa County District Court Case No. 17CR2426
                        Honorable Valerie J. Robison, Judge
______________________________________________________________________________

                                  Plaintiff-Appellant:

                             People of the State of Colorado,

                                            v.

                                  Defendant-Appellee:

                           Amanda Eileen Gadberry.
______________________________________________________________________________

                                Order Affirmed
                                    en banc
                                 May 20, 2019
______________________________________________________________________________

Attorneys for Plaintiff-Appellant:
Daniel P. Rubinstein, District Attorney, Twenty-First Judicial District
Brian Conklin, Deputy District Attorney
       Grand Junction, Colorado

Attorneys for Defendant-Appellee:
Megan Ring, Public Defender
Kristin Westerhorstmann, Deputy Public Defender
       Grand Junction, Colorado

JUSTICE HOOD delivered the Opinion of the Court.
CHIEF JUSTICE COATS dissents, and JUSTICE BOATRIGHT and JUSTICE
SAMOUR join in the dissent.
JUSTICE SAMOUR dissents, and JUSTICE BOATRIGHT joins in the dissent.
¶1     Marijuana isn’t meth. But drug-detection dog Talu can’t tell the difference. So

when Talu alerted to the driver and passenger side doors of Amanda Gadberry’s truck,

the officers didn’t know whether Talu had found marijuana, which is legal in some

circumstances in Colorado, or meth, which never is. This quandary led us in People v.

McKnight, a companion case also announced today, to hold that persons twenty-one years

of age or older have a reasonable expectation of privacy in the possession of one ounce

or less of marijuana in Colorado, therefore requiring officers to have probable cause that

an item or area contains a drug in violation of state law before they deploy a dog trained

to alert to marijuana. See 2019 CO 36, ¶ 7, __ P.3d __. We see no difference between

Gadberry’s situation and McKnight’s. Thus, Talu’s wide-ranging, though outdated,

training demanded probable cause before the drug-detection dog’s deployment, just as it

did in McKnight.

¶2     In this interlocutory appeal, we therefore hold that the officers needed probable

cause to deploy Talu. They didn’t have it. Accordingly, we affirm the trial court’s

suppression order.

                           I. Facts and Procedural History

¶3     While patrolling Mesa County, Deputy Stuckenschneider observed a black Dodge

pickup driving with a missing front license plate. Stuckenschneider phoned Deputy

Briggs, alerting her to the situation. But this wasn’t just any vehicle with a missing front

plate—a few days prior, Sergeant Beagley had stopped the same car for being incorrectly

registered and for displaying invalid license plates. Briggs knew all of this when she


                                             2
received the alert from Stuckenschneider. With knowledge of the previous stop and

Stuckenschneider’s observation regarding the front plate, Briggs pulled the Dodge over.

In the driver’s seat, she found Gadberry.

¶4     Briggs informed Gadberry that she initiated the stop because of the missing front

plate. Gadberry told Briggs that the car indeed had a front plate and, upon inspection,

Briggs found the missing plate shoved into the grill of the Dodge, although the car was

still improperly registered. While all of this was happening, Beagley, Handler Cheryl

Yaws, and dog Talu, who is trained to alert to methamphetamine, cocaine, heroin, and

marijuana, arrived on the scene. During the time that it took Briggs to run Gadberry’s

plates, Beagley asked Gadberry if there was any marijuana in the vehicle. She said no.

¶5     Shortly thereafter, Talu sniffed around the car and alerted to the driver and

passenger doors. With the benefit of that alert, the officers conducted a search of the car,

finding a cellophane wrapper of methamphetamine lodged inside a wallet. Gadberry

was then charged with (1) display of a fictitious license plate, (2) possession of drug

paraphernalia, and (3) possession of a controlled substance.

¶6     Gadberry moved to suppress the evidence on four grounds: (1) Briggs didn’t have

reasonable suspicion to initiate the stop; (2) the stop was unreasonably prolonged;

(3) Talu’s sniff was unlawful because Talu was trained to alert on both marijuana, a legal

substance, and illegal substances, such as methamphetamine; and (4) Talu’s sniff was

unreliable. The trial court denied claims one and two. It held that the “fellow officer

rule” imputed Stuckenschneider’s knowledge of the missing front plate and improper


                                             3
registration to Briggs, therefore justifying the stop. Additionally, it found that the stop

only lasted long enough for Briggs to obtain information, view the vehicle, and run the

plates. As a result, the court concluded that the officers didn’t unreasonably delay

Gadberry.

¶7     The trial court did, however, grant Gadberry’s motion to suppress based on claim

three. It followed the court of appeals’ decision in People v. McKnight, 2017 COA 93,

__ P.3d __, and found that a sniff is a search when a drug-detection dog can alert to both

illegal and legal substances. Here, no one presented any evidence suggesting that the

vehicle had any illegal substances in it or that Gadberry was aware of all the belongings

in the car, especially since multiple people had driven the car in the few days before the

stop. Therefore, the trial court reasoned that, under McKnight, the officers on the scene

needed reasonable suspicion that Gadberry had been involved in criminal activity to

initiate Talu’s sniff. Because the officers here lacked reasonable suspicion to deploy Talu,

the court granted the motion to suppress and didn’t reach claim four.

¶8     The People filed the interlocutory appeal at issue here, raising the following

question: Did the trial court err in finding that a free air sniff of the Defendant’s vehicle

by a dog trained in marijuana and illegal narcotics was a search, which required a

showing of reasonable suspicion?

                                       II. Analysis

¶9     We start with the standard of review and a quick synopsis of relevant search and

seizure caselaw. As we hold today in McKnight, article II, section 7 of the Colorado


                                             4
Constitution provides persons twenty-one years of age or older with a reasonable

expectation of privacy in the lawful activity of possessing an ounce or less of marijuana,

therefore necessitating probable cause that an item or area contains a drug in violation of

state law before officers deploy dogs trained to alert to marijuana. See McKnight, ¶ 7.

Gadberry is such an individual—regardless of her statements about the contents of the

vehicle—and, therefore, the officers needed probable cause that the vehicle contained a

drug in violation of state law before they conducted an exploratory sniff. Because there

was no such probable cause here, the officers impermissibly deployed Talu.

                                 A. Standard of Review

¶10      For suppression orders, we review legal conclusions de novo but defer to factual

findings that have record support. See People v. Gutierrez, 222 P.3d 925, 931–32 (Colo.

2009). Thus, we review the constitutionality of the sniff de novo.

              B. The Officers Needed Probable Cause to Deploy Talu

¶11      The narrow question before us is only whether Talu’s sniff required probable

cause.     The validity of the investigatory stop is not at issue.      Here, where the

drug-detection dog was trained to alert to marijuana, the officers needed probable cause

that the vehicle contained a drug in violation of state law before conducting the

exploratory sniff. See McKnight, ¶ 7.

¶12      Both the U.S. Constitution and the Colorado Constitution protect against

unreasonable searches and seizures. See U.S. Const. amend. IV (“The right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable searches


                                             5
and seizures, shall not be violated . . . .”); Colo. Const. art. II, § 7 (“The people shall be

secure in their persons, papers, homes and effects, from unreasonable searches and

seizures . . . .”). As a result, when a person has a reasonable expectation of privacy, the

prohibition on unreasonable searches and seizures protects a citizen from governmental

intrusion. See Kyllo v. United States, 533 U.S. 27, 33 (2001); Katz v. United States, 389 U.S.

347, 361 (1967) (Harlan, J., concurring).

¶13    The yardstick, however, is that there must be a reasonable expectation of privacy.

And both the Supreme Court and this court have held that there is no reasonable

expectation of privacy in contraband. See Illinois v. Caballes, 543 U.S. 405, 408–09 (2005);

People v. Esparza, 2012 CO 22, ¶ 11, 272 P.3d 367, 370. Accordingly, a sniff, which typically

“does not expose noncontraband items that otherwise would remain hidden from public

view,” during an otherwise legal stop isn’t an unreasonable search prohibited by either

the federal or state constitution. Caballes, 543 U.S. at 409 (quoting United States v. Place,

462 U.S. 696, 707 (1983)); accord Esparza, ¶ 11, 272 P.3d at 370.

¶14    In the companion case, we hold that this isn’t always the case. See McKnight, ¶ 7.

There, a dog trained to alert to both marijuana and state-banned substances alerted to

methamphetamine in a vehicle. Id. at ¶¶ 12–14. These facts bear an uncanny resemblance

to our current case.         The People, however, argue that there is a crucial

difference: McKnight never stated that there wasn’t any marijuana in the car. But we fail

to see the relevance of that fact. An expectation of privacy doesn’t disappear once a

citizen states that certain items aren’t in the car or on their person. Talu might still alert


                                              6
to marijuana, regardless of Gadberry’s statements, and it’s this potential to reveal lawful

activity that renders Talu’s sniff suspect.

¶15    Consider whether Gadberry uttering that there is “nothing” in the car versus there

isn’t any “marijuana” in the car should yield any doctrinal difference. If Gadberry states

that there’s nothing in the car, or says nothing, Talu still might still alert to legal activity—

the possession of one ounce or less of marijuana. That’s why we held in McKnight that

probable cause is required. McKnight, ¶¶ 54–55. It’s only once someone discloses the

presence of contraband, rather than withholding disclosure, that an expectation of

privacy is lost. See, e.g., People v. Carper, 876 P.2d 582, 584–85 (Colo. 1994) (holding that

the defendant didn’t have a subjective expectation of privacy in the contents of his shirt

pocket after disclosing the presence of cocaine in the pocket to police officers). Thus,

when someone says that there is “nothing” in the car, that might assert that person’s

privacy interest by refusing to disclose the presence of something in which the person

has a reasonable expectation of privacy.

¶16    That Gadberry stated that there wasn’t any marijuana in the car, rather than

“nothing,” doesn’t change this analysis. Gadberry still refused to disclose the presence

of marijuana, thereby asserting her privacy interest in lawful activity. And regardless of

any such assertion, Talu is still able to detect lawful activity, and the sniff “can no longer

be said to detect ‘only’ contraband.” McKnight, ¶ 43. Gadberry’s statements do nothing

to help the officers parse out whether the alert was for meth or marijuana: Talu doesn’t




                                               7
have a mastery of the English language and still gives the same alert for all trained

substances. In other words, Gadberry’s declarations are gobbledygook to Talu.

¶17    There also exists a practical problem with following the People’s analysis. If we

were to hold that disclosing the lack of marijuana to an officer results in permission to

sniff a car, we would be urging drivers to always assert that there is marijuana in the

vehicle. We would thus be encouraging citizens to lie to the police so that they may

maintain their constitutional rights. No source of law compels that absurdity.

¶18    Therefore, the officers needed probable cause that the vehicle contained illegal

narcotics before they deployed Talu.

             C. The Officers Lacked Probable Cause to Deploy Talu

¶19    The only information that any of the several officers involved in the stop had

was: (1) the Dodge had been stopped a few days prior and had improper registration and

(2) the vehicle was, apparently, missing a front plate. While these two facts might have

been enough to initiate the stop, they certainly didn’t “warrant a [person] of reasonable

caution in the belief” that a drug in violation of state law was present in the vehicle.

McKnight, ¶ 51 (alteration in original) (citing People v. Zuniga, 2016 CO 52, ¶ 16, 372 P.3d

1052, 1057). Indeed, there is nothing in the record that suggests any illegal narcotic

involvement at all, previously or at the time of the stop. As a result, the officers didn’t

have probable cause and shouldn’t have deployed Talu.




                                             8
                                       III. Conclusion

¶20    Gadberry’s declaration that her Dodge contained no marijuana didn’t strip her of

her constitutional rights. We therefore hold that the officers needed probable cause

before deploying Talu and that such cause wasn’t present here. Accordingly, we affirm

the trial court’s suppression order.

CHIEF JUSTICE COATS dissents, and JUSTICE BOATRIGHT and JUSTICE
SAMOUR join in the dissent.
JUSTICE SAMOUR dissents, and JUSTICE BOATRIGHT joins in the dissent.




                                              9
CHIEF JUSTICE COATS, dissenting.

¶21    For the reasons articulated in my dissenting opinion in People v. McKnight, 2019

CO 36, __ P.3d __, also reported by the court today, I would reverse the trial court’s

suppression order.

¶22    I therefore respectfully dissent.

       I am authorized to state that JUSTICE BOATRIGHT and JUSTICE SAMOUR join

in this dissent.




                                           1
JUSTICE SAMOUR, dissenting.

¶23   I respectfully dissent. For the reasons articulated in my dissenting opinion in the

companion case of People v. McKnight, 2019 CO 36, __ P.3d __, including my agreement

with the Chief Justice’s dissenting opinion in that case, I would reverse the trial court’s

suppression order.

      I am authorized to state that JUSTICE BOATRIGHT joins in this dissent.




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