Nov. 6, 2012, marked the passage of Amendment 64, which altered the state constitution to allow for the commercial sale of marijuana to the general public, among other stipulations. And while many Coloradans rejoiced in the news that cannabis consumption is now legal, the amendment brought important consequences for both marijuana users and law enforcement.
People v. McKnight
In the past, Supreme Court rulings have found that searches by drug-sniffing canines do not constitute illegal searches. According to Illinois v. Caballes, 543 U.S. 405 (2005), deploying a drug-sniffing dog was not in and of itself a violation of legitimate privacy interest. However, the passage of Amendment 64 in Colorado was a game changer for legal search.
According to a case summary of People v. McKnight, 2017COA93, the use of drug-sniffing dogs may in fact violate a citizen’s privacy. The case concerns an instance in which police stopped a vehicle traveling near a house where illegal drugs were found. Officers also recognized a female passenger as a former methamphetamine user. Upon stopping the vehicle, officers deployed a certified drug-detection dog to sniff for illegal substances.
After the dog alerted, officers searched the vehicle and discovered a glass methamphetamine pipe. The issue is that the dog’s alert did not distinguish between illegal drugs and marijuana, which is now legal under Colorado law.
According to McKnight, “Because a dog sniff of a vehicle could infringe upon a legitimate expectation of privacy solely under state law, that dog sniff should be considered a ‘search’ for purposes of article II, section 7 of the state constitution.”
What the Courts Say
In a court of appeals, judges found that the use of drug-sniffing dogs constituted a search under the State constitution. Further, two of the three judges agreed that the dog’s alert was not sufficient cause for police to conduct a search of the vehicle without “reasonable suspicion.” They went on to note that the officers did not see anyone from the house approach the truck or vice versa. The conviction of the defendants was therefore reversed.
In July of 2017, a Colorado appeals court also ruled that the scent of marijuana did not constitute cause for a search, as the drugs could be of the legal variety.
What This Means for Marijuana Users in Colorado
What’s the takeaway for Colorado residents who use marijuana?
While police are legally barred from searching a vehicle based solely on the scent of marijuana, law enforcement can intercede if they suspect individuals are consuming marijuana within a motor vehicle. Further, it’s illegal to drive with an “open container” of marijuana or with one that has a broken seal, though the exact definition of “open” remains uncertain. To protect your rights and your property, it’s wise to store all marijuana and smoking paraphernalia in the trunk of your vehicle while on the road.
Contact Tiftickjian Law Firm of Denver
A leader in DUI and drug crime defense, attorney Jay Tiftickjian is passionate about protecting the rights of marijuana users in Colorado. We understand that a change in the law does not always result in an immediate shift in law enforcement practices. From detecting flaws in the DRE’s administration of the impairment evaluation to ensuring search procedures were lawful, our firm has the knowledge and experience to safeguard your rights.
Call today to schedule a legal consultation.