The Scent of Freedom
On July 13, the Colorado Court of Appeals ruled that cannabis odor does not constitute probably cause in regards to warrantless vehicle searches, and the sound of the gavel resonated with cannabis consumers across Colorado. Judge Daniel Dailey ruled that police need more than just an odor to conduct a search on a vehicle due to the plant’s legal status in Colorado. People of the State of Colorado v. Kevin Keith McKnight has been called a precedent-setting case. Police officers, the judge ruled, cannot determine whether or not a crime has been committed based on odor alone.
In 2015, Officer Bryan Gonzales pulled over Kevin McKnight, a resident of Craig, Colorado, according to Colorado Court of Appeals’ documents. Gonzales requested that Sgt. Folks bring a drug detection K9 auspiciously named “Kilo.” The dog alerted Gonzales of the presence of “illegal” drugs in the car. To make things worse, McKnight was allegedly followed by police because he was seen leaving a house that was “known” for cannabis activity. The dog was trained to detect cocaine, heroin, ecstasy, methamphetamine and cannabis.
“Because Amendment 64 legalized possession for personal use of one ounce or less of marijuana by persons 21 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.’”
Drug-sniffing dogs only have the ability to alert police about the presence of any drugs, but they cannot differentiate between legal drugs such as cannabis and illegal drugs. The question now is, whether dogs can be retrained on sniffing out concealed cannabis in motor vehicles. “Extinction training” is the process of teaching the dogs to avoid cannabis smells. Cannabis extinction training, however, has been debunked by the K9 Consultants of America.
The Moffat County District Court originally convicted McKnight on possession of drug paraphernalia and possession of a controlled substance after initially finding a glass pipe. But an appeal would lead to the case being overturned, signaling a change in protocol for Colorado police officers.
The legal status of cannabis invariably affects search and seizure policies, whether law enforcement approves of it or not. “Because Amendment 64 legalized possession for personal use of one ounce or less of marijuana by persons 21 years of age or older in Colorado,” Judge Daniel Dailey wrote in the ruling, “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.’ 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.”
Colorado has sent mixed messages regarding probable cause in the past. Drug sniffing dogs alerted police officers about the presence of drugs in Victor Zuniga’s vehicle in Weld County in 2015. In 2016, the Colorado Supreme Court eventually ruled that cannabis odor can lead to warrantless searches in the case of the State of Colorado v. Victor Zuniga. Justice William Hood disagreed with the ruling, citing Amendment 64 as the reason the protocol needs to change. But the latest ruling effectively dismantles the idea that cops can automatically allow K9’s to follow the scent in vehicle searches.
Currently California and Arizona are the only other states that have ruled that cannabis odor is not sufficient for a warrantless search. In Colorado, however, police officers can still conduct a warrantless search if cannabis odor is accompanied by any other indications of illegal drug use.
