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Understanding Colorado’s Dog Sniff, Consensual Encounter and Investigatory Stop Rules: Is It A Search or Not?

It has been my experience – that the best way to understand a law is to put it into a fact pattern.  Here is a real – recent case in Colorado.

Summary of the Fact Pattern facts:

While driving a pick-up truck with a passenger eastbound on Interstate 76,  a man is stopped by a Colorado State Patrol officer who observed him making an unsafe lane change.  During the stop, the officer smells what he thinks is marijuana and calls for the assistance of a K-9 officer with a drug-sniffing dog. With the aid of the dog, the officers discover marijuana in the truck bed.

Some additional facts:

On January 17, 2007, while conducting a routine patrol on Colorado Interstate 76, a State Patrol observed an eastbound pick-up truck bearing Iowa plates change lanes without signaling. The officer directed the truck to the side of the highway and asked defendant, the driver, for his  license, proof of insurance, and registration papers. The driver  promptly provided the documents with the assistance of his male passenger.  Defendant had an Arizona license showing that he resided in Tucson, Arizona. The officer then inquired as to the owner of the vehicle. Defendant responded slowly, but ultimately indicated that the truck belonged to a friend.

The officer had extensive training and experience in drug investigations and was “concerned” by the lack of knowledge about ownership of the truck. He asked defendant to step outside. The officer again asked who owned the truck. After a long pause, the driver said again that the truck was owned by a friend. When the officer asked for the name of the friend, the driver responded that he was actually a friend of the passenger. The officer then asked for the name of the passenger, and after another pause defendant gave the passenger’s first name but could not provide his last name. In response to further questioning, the driver said they were headed to Iowa, but could not provide an address, and indicated they would be gone for a week.

The officer then questioned the passenger, who also was hesitant in his responses and could not identify the owner by name or the owner’s address or phone number. The passenger said they were returning the truck to the owner. When asked how they would do that without knowing the owner’s address or phone number, the driver and the passenger said that they planned to call the owner’s uncle to reach the owner.

The officer ran a check on the driver’s license and the registration, which revealed no warrants or criminal history for defendant and no reports that the truck had been stolen. He returned the documents to defendant, gave him a verbal warning about the lane change violation, and told him he was free to go. The officer testified that at that point he had no problem with defendant, the passenger, and the truck leaving the scene.

However, after the driver took two or three steps toward the truck, the officer asked if they could talk further. The driver said “yeah, sure, “  and walked back toward the officer. The officer said he had concerns that the story provided by defendant and the passenger did not make sense. He asked defendant and the passenger if they had narcotics or weapons in the truck, specifically mentioning marijuana, methamphetamine, cocaine, and heroin, and both told him they did not. The officer then separately provided defendant and the passenger with copies of a state patrol form consenting to a search of the vehicle. They both declined consent.

At this point, the officer told them that, based upon his training and experience, they were free to leave but that the truck would have to stay for a K-9 unit to conduct a narcotic dog search. The officer offered to let them make a phone call or to arrange for them to have a ride into the nearest town. The driver  and the passenger said they wanted to wait with the truck.

The K-9 officer arrived with the dog between fourteen and twenty minutes after the initial contact. The first officer asked the K-9 officer to have the dog perform a free air sniff around the truck.

In the course of walking around the vehicle, the dog alerted by aggressively scratching at the tailgate, indicating the presence of narcotics. The K-9 officer rolled back the cover on the bed of the truck and the officers discovered the marijuana.

Q: What Are The Legal Implications of a Dog Sniff Search – Is This a Legal Search Under the Fourth Amendment?

Q: Did the driver have to speak to the officer beyond providing his driver’s license, proof or insurance and registration? 

 A: No – his conversation with the officer was consensual – at any time the driver and the passenger could have refused to speak to the officer further and exercised their right to remain silent.

Q: Was the stop legal under this fact pattern? 

 A: Yes – the driver committed a traffic offense – the officer who made the stop had reasonable suspicion of a traffic violation to justify the initial investigatory stop and that under the totality of the circumstances the officer had suspicions that were not unreasonable justifying the detention of the truck that resulted in the discovery of the marijuana.

Q What Are Your Rights in this Situation?

We start with the 4th Amendment to the Colorado and United States Constitution

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution protect persons from unreasonable searches and seizures of their person, home, papers, and effects.

The Colorado Supreme Court has held that a dog sniff search of a vehicle in connection with a traffic stop that is prolonged beyond its purpose to conduct a drug investigation intrudes upon a reasonable expectation of privacy and therefore requires reasonable suspicion of criminal activity.

However if the stop is based on “reasonable suspicion – a lesser standard than probable cause, – (which is generally required before a law enforcement officer may search or seize personal property), an officer acting with a reasonable, articulable suspicion that a person has been, is, or is about to be engaged in criminal activity may detain personal property for temporary investigatory purposes.

Therefore, if the Defendant challenges the stop in a motion to suppress evidence hearing (as I would of course under these circumstances) the prosecution is required to show the judge that the officer acted on specific and articulable (relatable facts), which, when taken together with reasonable inferences from those facts, gave rise to reasonable suspicion.

The Court of Appeals in this case ruled in favor of the government. It held that two discrepancies immediately jumped out of the papers produced.  First, defendant had an Arizona driver’s license, but the truck bore Iowa plates.  Second, the truck was registered in the name of someone other than defendant or the passenger. The officer’s suspicions were further heightened by the fact the driver and the passenger did not know the owner’s name, despite being in the middle of an extended journey from Tucson, Arizona to an unknown location in Iowa. Neither knew the owner’s address or phone number. Neither could identify their destination other than Iowa. They offered no plan for how they would connect with the owner other than to call the owner’s uncle at some point. The driver did not even know the last name of the passenger.

The Court found that “while some of these facts might well be taken as innocent in isolation or even in combination with one or two others, we conclude that the totality of the circumstances supports the existence of reasonable suspicion to detain the truck and conduct the dog sniff.

Colorado “Consensual Encounters:”

As long as the officer asks questions and you agree to answer them – you are exposing yourself to further investigation and possible arrest and charging of criminal offenses.  YOU control the consensual encounter – at ANY time you can assert your right to remain silent.

The law defines a Consensual Encounter with a civilian as a merely a request for voluntary cooperation through non coercive questioning. An officer may initiate this contact despite lack of probable cause or reasonable suspicion

That is why you do NOT answer the officer’s questions.  You don’t have to – you can remain silent after you produce your driver’s license and proof of insurance.  It was the driver and the passenger’s ANSWERS that led to the detention – the dog sniff search – and the arrest and charging of the defendant.

The police know that if their questioning during the stop has not produced reasonable suspicion for continuing it – protracting it, they can try to continue the conversation to try to “develop” evidence of a crime .

Allowing officers further to question motorists unfairly disadvantages them because they may well be unaware that the traffic stop has ended.  The transition between a detention and a consensual exchange can be seamless.  Most citizens would not recognize the transition and would not feel free to terminate the encounter absent a clear endpoint to the investigative detention.

This disadvantage is made worse by the inherent social pressure to cooperate with the police and the fact that the officer need not tell the motorist that he or she is free to decline the officer’s request and leave the scene.

Colorado’s Investigatory Stop Law:

An investigatory stop must be supported by reasonable suspicion and must be necessarily temporary and limited in scope.  Here, at the conclusion of the consensual questioning, the officer told defendant that while he and the passenger were free to leave, the truck would have to remain pending the arrival of the K-9 unit to conduct a dog sniff for narcotics. In determining whether the limits of an investigatory stop have been exceeded, the courts must consider the length of the detention, whether the officer diligently pursued the investigation during the detention, whether the suspect was required to move from one location to another, and whether there were alternative, less intrusive means available and whether the police acted unreasonably in failing to pursue them.

Applying these factors to this case, the Court concluded that the length of detention was appropriately brief, with the entire encounter lasting between fourteen and twenty minutes from the initial contact to the arrival of the K-9 unit.

The Court found that there was no suggestion that the officer delayed or failed to act diligently, and the K-9 unit arrived shortly after defendant was advised the truck would be held for a dog sniff.

Colorado Dog Sniff Law:

As a seasoned ( but still young) prosecutor – I handled the case in Colorado that set the law for Dog Sniff’s.  People v. Wieser, 796 P.2d 982 (Colo.1990) Arapahoe county District Court Colorado

A dog-sniff search must be reasonable to avoid violating a defendant’s constitutional rights. To be reasonable, a government agent must have a reasonable suspicion that a package contains narcotics prior to the dog-sniff search.

A dog sniff conducted outside of – for example a storage locker is not a search under either the United States Constitution or the Colorado Constitution.  Colorado law is that a dog sniff does not expose noncontraband items that otherwise would remain hidden from public view. The only information the sniff discloses to law enforcement authorities is whether narcotics are present in the area sniffed. A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy.

To satisfy this burden, the state must show the agent had “specific and articulable facts, which taken together with reasonable inferences from these facts, give rise to a reasonable suspicion.” . Reasonable suspicion does not equal probable cause but must be more than a mere hunch.

Challenging the Results of a Dog Sniff as Evidence:

The defense attorney would need to learn as much as possible about the canine involved.  A demand for “discovery” from the District Attorney would require the at least the following information. Beyond the brief episode involving the search itself – the defense would attack the “dog and the dog trainer” so to speak

The following demand for documents would need to be made:

a. The training history of the dog,

b. the training and education history of the dog’s trainer,

c. the dog’s medical history, and

d. the history of the dog’s alelis, especially false alerts. All relevant evidence in this case regarding the Court’s obligation to make findings of fact pursuant to Shreck (challenging the “science” behind the sniff evidence and also concerning the application of rules of evidence C.R.E. 403 and 702 to any proffered dog sniff evidence.

Advance production and inspection of these documents as well as:

a. All records of any type, electronic, video, written, or in any way recorded, in
which this canine unit was used for the six months proceeding, and including, this
search.

b. All records, reports, proficiency training records, including both documents and
video recordings which relate to the training and use of this canine.

c. All departmental or organizational policies, rules, directives, memos, and
operating procedures relating to the training of drug detector dogs for the police
department, including certification standards for the Aurora Police Department or
any other certifying organizations.

d. All departmental or organizational policies, rules, directive, memos, and operating
procedures relating to the field use of drug detector dogs by the police department.

e. All news articles, recordings, or videotapes about the police canine unit, including
these officers (or a list of the names and dates of newspapers, T.V. stations, etc.,
who have such records).

f. All departmental or organizational policies, rules, directives, memos, and
operating procedures surrounding the last date of certification testing for the
canine unit involved in this case, including any recordings of the actual testing.

g. All documentation listing all items this canine is allegedly trained to detect.

h. All documents that define the final response this canine was allegedly trained to
make upon finding an item (the specific “alert” for which this dog was trained).

1. All documentation identifying this canine’s primary reward, and any other
rewards used with this canine, either in training, or otherwise, including during
play.

J. All documentation regarding the specific training aids used to train this canine,
specifically the chemical composition, purity, and packaging of the controlled
substances, and including any “fake” controlled substances used in training or
otherwise

k. All laboratory analyses of all seizures made by or with the use of this canine from
six months prior to the search and an-est in the instant case, to the date and time of
the instant an-est.

1. All departmental or organizational policies, rules, directives, memos, and
operating procedures which define or outline the minimum departmental standard
of training proficiency for drug canines.

m. All departmental or organizational policies, rules, directives, memos, and
operating procedures which define or outline the response/find ratio that the
canine search teams must maintain to remain in field service.

n. All reports or documentation describing the number of occasions where officers
have used dogs to assist in searches.

The Case discussed is the recent decision of the Colorado Court of Appeals — September 30, 2010  No. 09CA0167. People v. Garcia.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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