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People v. Lopez.

2022 COA 70. No. 19CA1727.  Colorado Constitution—Amendment 64—Exploratory Dog Sniff of a Vehicle’s Exterior—Probable Cause.

June 30, 2022

Defendant was pulled over for driving a vehicle without a valid registration and failing to signal while turning. The officer noticed that defendant was nervous and summoned a K-9 unit to conduct a dog sniff of the vehicle’s exterior. The dog alerted to narcotics, and a subsequent search of the vehicle’s interior revealed illegal narcotics, a loaded semiautomatic handgun, and a bag of tools. Defendant was arrested and moved to suppress the evidence produced by the search. The trial court denied the motion, finding that it was supported by reasonable suspicion but not probable cause. A jury found defendant guilty of six counts of possessing a controlled substance, and he was adjudicated as a special offender on four of those counts for possessing a weapon during a drug crime. He was sentenced to 64 years’ imprisonment.

On appeal, defendant argued that the trial court erred by not excluding evidence obtained as the result of an illegal, exploratory dog sniff of the vehicle’s exterior because the dog sniff was not supported by probable cause. Amendment 64 to the Colorado Constitution provides that it is not unlawful nor an offense under Colorado law for a person who is at least 21 years old to possess one ounce or less of marijuana. Following passage of Amendment 64, the Colorado Supreme Court decided People v. McKnight, 2019 CO 36, holding that an exploratory dog sniff of a vehicle’s exterior has to be justified by a showing of probable cause, not just reasonable suspicion. Defendant’s case was pending on appeal when McKnight was announced, and he is entitled to its retroactive application. The People did not argue that the circumstances in this case satisfied probable cause for the search. Therefore, the trial court erred in not suppressing the evidence found after the dog sniff.

The judgment of conviction was reversed and the matter was remanded for a new trial.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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