H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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2012 Drug Dog Case Greatly Expands And Alters The Course Of Dog Sniff In Colorado

Introduction – A March 2012 case decided by the Colorado Supreme Court – People v. Esparza, has held that a drug sniffing dog can smell outside a defendant’s parked vehicle without the police having reasonable suspicion of the presence of contraband, and that such use of the dog does not constitute a “search” under the Colorado Constitution’s protections against unreasonable search and seizure.

In one fell swoop – the Court ignored a line of cases that required some measure of evidence before law enforcement would have authority to conduct the search. This quantum of evidence is known as reasonable suspicion.

The Facts Of The Case – The Government brought an appeal assigning of the Trial Court’s decision to suppress contraband seized from defendant’s vehicle on two occasions.

In each case, after defendant was arrested for driving under suspension, a police narcotics detection dog was brought to the scene and led around suspect’s truck, which had been parked and left at the location of her arrest. The dog alerted to the presence of narcotics, a search of the truck’s cab revealed drug paraphernalia and suspected methamphetamine.

The Trial Court held that Colorado’s State Constitution barred the police from bringing a trained narcotics detection dog within detection range of defendant’s vehicle without first having reasonable suspicion to believe it contained contraband… which has been the RULE in Colorado for many years.

The Supreme Court Throws Out The Old “Protection”

The Supreme Court held that an interest in possessing contraband cannot be deemed legitimate under the state constitution any more than under the federal constitution, and that official conduct failing to compromise any legitimate interest in privacy cannot be deemed a search under the state constitution any more than under the federal constitution.

The NEW Rule On Dog Sniff Search Cases

Because narcotics dogs could not communicate anything more than reason to believe defendant’s truck either contained or did not contain contraband, permitting narcotics dogs to sniff around the vehicle did not infringe on any reasonable privacy interest. The Court reversed the district court’s order and remanded the case for further proceedings.

Here is The Rule:

The drug sniff was constitutional, because:

(1) Defendant’s vehicle was not illegally stopped or detained in both instances of arrest;

(2) the Defendant had no legitimate privacy interest in contraband;

and

(3) a drug sniffing dog can indicate nothing more than either the presence or absence of contraband, the lack of reasonable suspicion was irrelevant in Esparza.

Flawed Reasoning

Both the U.S. and Colorado Supreme Courts rely heavily on the premise that drug dogs only alert to the presence or absence of contraband; in other words, the use of the dog cannot itself be considered a “search” because it only leads to an invasion of privacy where there is no legitimate privacy interest–e.g. when there is contraband, which supposedly is the only time that the dog will alert.

In a sternly worded dissent – Colorado Supreme Court Justice Hobbs attacked this assumption and asserted that “[i]t has always been a fallacy to suggest that finding such items justifies a search” in the first place, before going on further to highlight the very real possibility of false positives yielded by drug sniffing dogs.

See My Article on this Subject: Click Here

The Decision To Match Federal Dog Sniff Law and Ignore Colorado Precedent

A phrase known to the law as stare decisis requires appellate courts to follow prior decided cases and to give those cases deference. This case turns this doctrine on its head.

In it’s need to track and make Colorado law more uniform to the federal rule in this area rather than exercise it’s right to exceed federal protections (known as federalism) Colorado now is alligned with the U.S. Supreme Court’s approach to drug dogs and unreasonable searches..