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.
ADVANCE SHEET HEADNOTE

May 20, 2019
20 19 CO 37
No. 18SA208, People v. Gadberry
— Searches and Seizures
— Drug
- Detection Dog
— Probable Cause
. At issue in this interlocutory appeal is whether law enforcement needed probable cause before deploying a drug

- detection dog that was trained to alert to both marijuana and other substances. Adopting the analytical framework announced today in the compani on case, People v. Mc K night , 2019 CO 36 , __ P.3d __, t he supreme court holds that the officers needed probable cause before deploying such a drug

- detection dog, and a defendant’s statements regarding the presence or non

- presence of marijuana does not chang e this. Because the officers did not have probable cause, the drug

- detection dog never should have been deployed. Accordingly, we affirm the trial court’s suppression
order.The Supreme Court of the State of Colorado 2 East 14 th Avenue • Denver, Colora do 80203

2019 CO 37 Supreme Court Case No. 18SA208 Interlocutory Appeal from the District Court Mesa County District Court Case No. 17CR2426 Honorable Valerie J. Robison , Judge

______________________________________________________________________________ Plaintiff
- Appellant : People of the State of Colorado ,

v. Defendant

- Appellee : Amanda Eileen Gadberry

.

______________________________________________________________________________ Order Affirmed en banc May 20, 2019

______________________________________________________________________________ Attorney s for Plaintiff
- Appellant : Daniel P. Rubinstein, District Attorney, Twenty

- First Judicial District Brian Conklin, Deputy District Attorney Grand Junction, Colorado Attorneys for Defendant
- Appellee : Megan Ring, Public Defender Kristin Westerhorstmann, Deputy Public Defender Grand Junction, Colorado JUSTICE HOOD delivered the Opinion of the Court. CHIEF JUSTICE COATS dissents , and JUSTICE BOATRIGHT and JUSTICE SAMOUR join in the dissent

. JUSTICE SAMOUR dissents, and JUSTICE BOATRIGHT join s in the dissent.2

¶1 Marijuana isn’t meth. But drug

- detection dog Talu can’ t tell the difference. So when Talu alerted to the driver and passenger side doors of Amanda Gadberry’s truck , the officers didn’t know whether Talu had found marijuana, which is legal in some
circumstances in Colorado, or meth, which never is . This quandary led us in People v. McKnight , a companion case also announced today, to hold that persons twenty

- one years of age or older have a reasonable expectation of privacy in the possession of one ounce
or less of marijuana in Colorado , therefore requiring officers to have probable cause that
an item or area contains a drug in violation of state law before they deploy a dog trained
to alert to marijuana

. See 2019 CO 36 , ¶ 7, __ P.3d __

. We see no difference betwee n Gadberry’s situation and McKnight’s

. Thus , Talu’s wide

- ranging, though outdated, training demand ed probable cause before the drug

- detection dog’s deployment, just as it
did in McKnight

. ¶2 In this interlocutory appeal, w e therefore hold that the officers needed probable

cause to deploy Talu. They didn’t have it. Accordingly, we affirm the trial court’s suppression order.


### I. Facts and Procedural History
¶3 While patrolling Mesa County, Deputy Stuckenschneider observed a black Dodge pickup driving with a missing front license plate. Stuckenschneider phoned Deputy Briggs, alerting her to the situation. But this wasn’t just any vehicle with a missing front plate

— a few days prior , S e rge a nt Beagley had stopped the same car for being incorrect l y registered and for displaying invalid license plates

. Briggs knew all of this when s he3

received the alert from Stuckenschneider. With knowledge of the previous stop and
Stuckenschneider’s observation regarding the front plate , Briggs pulled the Dodge over. In the driver’s seat , s he found Gadberry.
¶4 Briggs informed Gadberry that s he initiated the stop because of the missing front plate. Gadberry told Briggs that the car indeed had a front plate and, u pon inspection, Briggs found the missing plate shoved into the grill of the Dodge , although the car was still improperly registered

. While all of this wa s happening, Beagley , Handler Cheryl
Yaws , and dog Talu , who is trained to alert to methamphetamine, cocaine, heroin, and marijuana, arrived on the scene
. During the time that it took Briggs to run Gadberry’s plates, Beagley asked Gadberry if there was any marijuana in the vehicle . S he said no
. ¶5 Shortly thereafter , Talu sniffed around the car and alerted to the driver and passenger doors. With th e benefit of that alert, the officers conducted a search of the car, finding a cellophane wrapper of methamphetamine lodged inside a wallet. Gadberry was then charged with (1) display of a fictitious license plate , (2) possession of drug paraphernalia , an d (3) possession of a controlled substance.
¶6 Gad berry moved to suppress the evidence on four grounds: (1) Briggs didn’t have reasonable suspicion to initiate the stop; (2) the stop was unreasonably prolonged ; (3) Talu’s sniff was unlawful because Talu was trained to alert on both marijuana, a legal substance, and il legal substances, such as me thamphetamine ; and (4) Talu’s sniff was
unreliable. The trial court denied claims one and two

. It held that the “fellow officer rule” imputed Stuckenschneider’s knowledge of the missing front plate and improper4

registration to Briggs, therefore justifying the stop. Additionally, it found that the stop only lasted long enough for Briggs to obtain information, view the vehicle, and run the plates. As a result, th e court concluded that the officers didn’t unreasonably delay Gadberry.
¶7 The trial court did, however, grant Gadberry’s motion to suppress based on claim
three. It followed the court of appeals ’ decision in People v. McKnight , 2017 COA 93,

__ P.3d __, and found that a sniff is a search when a drug

- detection dog can alert to both illegal and legal substances. Here, no one presented any evidence suggesting that the vehicle had any illegal substances in it or that Gadberry was aware of all the belongings in the car, especially since multiple people had driven the car in the few days before the stop . Therefore, the trial court reasoned that, under McKnight , the officers on the scene needed reasonable suspicion that Gadberry had been involved in criminal ac tivity to initiate Talu’s sniff. Because the offic ers here lacked reasonable suspicion to d eploy Talu , the court granted the motion to suppress and didn’t reach claim four.
¶8 The People filed the interlocutory appeal at issue here , raising the following
q uestion: Did the trial court err in finding that a free air sniff of the Defendant’ s vehicle by a dog trained in marijuana and illegal narcotics was a search, which required a
show ing of reasonable suspicion?


### II. Analysis ¶9 We start with the standard of review and a quick synopsis of relevant search and
seizure case law

. As we h o ld today in McKnight , article II , section 7 of the Colorado5

Constitution provides persons twenty

- one years of age or older with a reasonable expectation of privacy in the lawful activity of possessing an ounce or less of marijuana , therefore necessitating probable cause that a n item or area contains a drug in violation of
state law before officers deploy dogs trained to alert to marijuana

. See McKnight , ¶ 7

. Gadberry is such an individual

— regardless of her statements about the contents of the
vehicle

— and, therefore, the officers needed probable cause that the vehicle contained a drug in violation of state law before they conducted a n exploratory sniff. Becaus e there
was no such probable cause here, the officers impermissibly deployed Talu

. 

### A. Standard of Review
¶10 For suppression orders, w e review legal conclusions de novo but defer to factual findings that have record support. See People v. Gutierrez , 222 P.3d 925 , 931

– 32 (Colo. 2009)

. Thus, we review the constitutionality of the sniff de novo.



### B. The Officers Needed Probable Cause to Deploy Talu
¶11 The narrow question before us is only whether Talu’s sniff required probable

cause . The validity of the investigatory stop is not at issue. Here, where the drug

- detection dog was trained to alert to marijuana , the officers needed probable cause
that the vehicle contained a drug in violation of state law before conduct ing the explorato ry sniff. See McKnight , ¶ 7

. ¶12 Both the U.S. Constitution and the Colorado Constitution protect against
unreasonable searches and seizures. See U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, ag ainst unreasonable searches6

and seizures, shall not be violated . . . .”); Colo. Const. art. II, § 7 (“The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and
seizures . . . .” ). As a result , when a person has a reasonable expectation of privacy, the prohibition on unreasonable searches and seizures protects a citizen from governmental
intrusion. See Kyllo v. United States , 533 U.S. 27, 33 (2001) ; Katz v. United States , 389 U.S. 347, 361 (19 67) (Harlan, J., concurring)

. ¶13 The yardstick , however, is that there must be a reasonable expectation of privacy.
And b oth the Supreme Court and this court have held that there is no reasonable expectation of privacy in contraband. See Illinois v. Caballe s , 543 U.S. 405, 40 8

– 0 9 (2005); People v. Esparza , 2012 CO 22, ¶ 11, 272 P.3d 367, 370. Accordingly , a sniff, which typically “does not expose noncontraband items that otherwise would remain hidden from public view,” dur ing an otherwise legal stop isn’ t an unreasonable search prohibited by either
the federal or state constitution. Caballes , 543 U.S. at 409 (quoting United States v. Place , 462 U.S. 696, 707 (1983)); accord Esparza , ¶ 11, 272 P.3d at 370.
¶14 In the companion case , we hold that this isn’t a lways the case. See McKnight , ¶ 7.
There , a dog trained to alert to both marijuana and state

- banned substances alerted to methamphetamine in a vehicle

. Id. at ¶¶ 12

– 14

. T hese facts bear an uncanny resemblance

to our current case

. The People , however, argue that there is a crucial
difference: McKnight never stated that there wasn’t any marijuana in the car. But we fail
to see the relevance of that fact. An expectation of privacy doesn’t disappear once a citizen states that certain items aren’t in the car or on their person

. Talu might still alert7

to marijuana , regardless of Gadberry’s statements, and it’s this potential to reveal lawful activity that renders Talu’s sniff suspect.
¶15 Consider whether Gadberry uttering that there is “nothing” in the car versus there isn’t any “marijuana” in the car should yield any doctrinal difference. If Gadberry states that there ’s nothing in the car, or says nothing, Talu still might still alert to legal activity

— the possession of one ounce or less of marijuana. That’s why we held in McKnight that probable cause is required. McKnight , ¶ ¶ 54

– 55

. It’s only once someone disclose s the presence of contraband, rather than withhold ing disclosure, that an expectation of privacy is lost. S ee

, e.g. , People v. Carper , 8 76 P.2d 582 , 584

– 85 (Colo. 1994) (holding that the defendant didn’t have a subjective expectation of privacy in the contents of his shirt pocket after disclosing the presence of cocaine in the pocket to police officers). Thus,

w hen someone says that there is “nothing” in the car, that m ight assert that person’s privacy interes t by refusing to disclose the presence of something in which the person has a reasonable expectation of privacy

. ¶16 That Gadberry stated that there wasn’t any marijuana in the car, rather than “nothing,” doesn’t change this analysis. Gadberry still refused to disclose the presence of marijuana, thereby asserting her privacy interest in lawful activity. And regardless of any such assertion , Talu is still able to detect lawful activity , and the sniff “can no longer be said to detect ‘only’ contraband.” McKnight , ¶ 43

. Gadberry’s statements do nothing to help the officers parse out whether the alert was for meth or marijuana : Talu doesn’t8

h ave a mastery of the English language and still gives the same alert for all trained
substances. In other words, Gadberry’s declarations are gobbledygook to Talu.
¶17 The re also exists a practical problem with following the People’s analysis. If we

were to hold that disclosing the lack of marijuana to an officer results in permission to sniff a car, we would be urging drivers to always assert that there is marijuana in the
vehicle . We would thus be encouraging citizens to lie to the police so that they may maintain their constitutional rights

. No source of law compels that absurdity.
¶18 Therefore, the officers needed probable cause that the vehicle contained illegal
narcotics before they deployed Talu

.



### C. The Officers Lacked Probable Cause to Deploy Talu ¶19 The only information that any of the several officers involved in the stop had

was: (1) the Dodge had been stopped a few days prior and had improper registration and (2) the vehicle was, apparently, missing a front plate. W hile these two facts might have been enough to initiate the stop, they certainly didn’t “warrant a [ person ] of reasonable
caution in the belief” that a drug in violation of state law w as present in the vehicle

. McKnight , ¶ 51 (alteration in original) (citing People v. Zuniga , 2016 CO 52 , ¶ 16, 372 P.3d 1052, 1057)

. Indeed , there is nothing in the record that suggests any illegal narcotic involvement at all, previously or at the time of the stop. As a result , the officers didn’t
have probable cause and shouldn’t have deployed Talu

.9 

### III. Conclusion
¶20 Gadberry’s declaration that her Dodge contain ed no m arijuana didn’t strip her of
her constitutional rights. W e therefore hold that the officers n eeded probable cause before deploying Talu and that such cause was n’t present here . Accordingly, we affirm the trial court’s suppression order. CHIEF JUSTICE COATS dissents , and JUSTICE BOATRIGHT and JUSTICE SAMOUR join in the dissent

. JUSTICE SAMOUR dissents, and JUSTICE BOATRIGHT join s in the dissent.1

CHIEF JUSTICE COATS , dissenting

. ¶21 F or the reasons articulated in my dissenting opinion in People v. McKnight , 2019
CO 36 , __ P.3d __, also reported by the court today, I would reverse the trial court’s suppression order.
¶22 I therefore respectfully dissent. I am authorized to state that JUSTICE BOATRIGHT and JUSTICE SAMOUR join
in this dissent.1

JUSTICE SAMOUR , dissenting

. ¶23 I respectfully dissent. F or the reasons articulated in my dissenting opinion in the companion case of People v. McKnight , 2019 CO 36 , __ P.3d __, including my agreement with the Chief Justice’s dissenting opinion in that case , I would reverse the trial court’s suppression order.
I am authorized to state that JUSTICE BOATRIGHT joins in this dissent.