Sensi: Cannabis Odor Not Enough Reason to Arrest

A three-judge panel of the Colorado Court of Appeals has ruled that the odor of marijuana in a vehicle found by a drug-sniffed police dog is not grounds for searching a vehicle and that officers need something more to search a vehicle without the owner’s permission.

The Colorado Supreme Court had ruled last year that a drug dog’s smell test can “contribute” to a probable-cause determination if the suspects are doing something else to raise suspicion because the smell of cannabis is suggestive of criminal actions.

The Grand Junction Sentinel reported that the decision came out of a 2015 case in Moffat County, where a drug-sniffing dog alerted officers to the presence of an illegal drug in a truck driven by Craig resident Kevin McKnight. The dog was trained to identify cocaine, heroin, Ecstasy, methamphetamine and marijuana. Marijuana possession by adults over 21 is legal in Colorado so since the dog could not tell officers what he detected, the search was illegal.

The judges wrote in their ruling: “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. Because a dog sniff of a vehicle could infringe upon a legitimate expectation of privacy solely under state law, that dog sniff should now be considered a ‘search’ … where the occupants are 21 years or older.”

Leland Rucker, senior editor at Sensi Magazine says that Arizona and California courts have said that a pot smell alone is insufficient for a warrantless search. The smell of marijuana in a Colorado search is still sufficient if there are other factors that raise an officer’s suspicion.

“This doesn’t guarantee you’ll get off for any infraction. The Colorado Supreme Court ruled in 2016 that a drug dog’s smell test can “contribute” to a probable cause determination if the suspects are doing something else to raise suspicion of criminal activity.”

But in the Moffat County case, judges concluded that the dog’s alert did more than “contribute” to a decision to search the car because the man gave no indication he was impaired or doing anything illegal. “The police lacked the requisite reasonable suspicion to subject McKnight’s truck to a dog sniff,” they wrote.