Money & the Law: Dogs, drugs and the right to privacy – Colorado Springs Gazette

Dogs are not always mans best friend, especially if youre engaged in illegal drug activity. Then a dog might take you down a path to prison.

Police and other law enforcement agencies have been using dogs trained to detect illegal drugs (and explosives) for many years. However, Colorados passage of Amendment 64 in 2012, which made possession of a small amount of marijuana for personal use legal, greatly complicated the life of a drug-sniffing dog.

Dogs cant tell the difference between a small, and therefore legal, amount of marijuana and a larger, and therefore illegal, amount. Also, a drug-sniffing dog will decline, when asked, to tell its handler whether what is being sniffed is marijuana or some other illegal drug.

So, if youre a police officer and you make a traffic stop and your drug-sniffing companion tells you there is something in the vehicle the dog has been trained to detect, can you search the vehicle? The answer, at least in Colorado, is no unless you have probable cause coming from something other than the dog to believe the vehicle contains illegal drugs.

If you do a search based on nothing more than the dogs response and you find contraband, it cant be used as evidence in a criminal trial. The search was illegal in violation of the Fourth Amendment to the U.S. Constitution and the defendant is entitled to have the evidence suppressed. (Under the Fourth Amendment, a search is illegal if it intrudes on a persons reasonable expectation of privacy in lawful activity.)

The latest case to reach a Colorado appellate court addressing this issue is People v. Restrepo, decided by the Court of Appeals last month. In this case, Colorado Springs police followed Anthony Restrepos vehicle for some two hours because they suspected, without firm evidence, that he might be involved with methamphetamines.

Finally Restrepo, up to this point a model driver, rolled through a stop sign and the police pulled him over. A drug-sniffing dog was on the scene and indicated it had detected something it was trained to look for. The police then searched the vehicle and found methamphetamines and drug paraphernalia in a backpack. Restrepo was charged with various drug-related crimes and convicted by an El Paso County jury.

During the trial, Restrepo asked the judge to suppress the evidence coming from the vehicle search. However, that request was denied because, at the time of the request, the law had a less restrictive standard concerning vehicle searches resulting from dog sniffs.

But then along came a Colorado Supreme Court decision tightening the standard and, based on that decision, Restrepo asked the trial court judge to set aside his conviction. The judge denied the request. Restrepo thereupon took his argument to the Court of Appeals, and that court agreed with him that the evidence leading to his conviction should not have been admitted and his conviction was overturned.

Prosecutors could ask the Colorado Supreme Court to review the Court of Appeals decision, but until dogs go back to school and learn how to distinguish a legal quantity of marijuana from illegal contraband, it seems likely the court will conclude it has had enough of dog-sniff law and decline to hear the case.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at moneylaw@jtflynn.com.

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Money & the Law: Dogs, drugs and the right to privacy - Colorado Springs Gazette