Peo v. Snodgrass

• Court: Colorado Court of Appeals
• Decided: January 6, 2022
• Docket: 18CA0597
• Status: Unknown

Opinion

18CA0597 Peo v Snodgrass 01-06-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA0597

El Paso County District Court No. 17CR3103

Honorable Jill M. Brady, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matt William Snodgrass,

Defendant-Appellant.

JUDGMENT REVERSED IN PART

AND VACATED IN PART

Division VII

Opinion by JUDGE NAVARRO

Pawar, J., concurs

Grove, J., concurs in part and dissents in part

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 6, 2022

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, Matt William Snodgrass, appeals the judgment of

conviction entered on jury verdicts finding him guilty of possession

of a controlled substance, possession of drug paraphernalia, and

illegal use, consumption, or possession of marijuana in a motor

vehicle. We reverse in part and vacate in part.

I. Factual and Procedural History

¶ 2 Late at night in May 2017, Snodgrass was sitting alone in his

parked car in an empty shopping center parking lot when Officer

Justis Reder approached. The officer noticed Snodgrass slumped

over the steering wheel with his head tilted forward. Snodgrass

said he did not have a driver’s license but gave his name. He asked

the officer to let him go, and he said he did not have any warrants.

According to the officer’s later testimony, Snodgrass seemed “very

jittery,” nervous, and like he “was possibly hiding something.”

¶ 3 Police dispatch reported that Snodgrass had an active arrest

warrant, and Reder called for backup. After Officer Shannon Daly

arrived, Reder arrested Snodgrass and found an unsealed baggie of

marijuana in his pocket.

¶ 4 Reder believed at the time that the marijuana weighed less

than one ounce and, in fact, later testing revealed that it weighed

2

.20 ounces — a legal amount under Colorado law. Reder also

believed that (1) it is very common for someone with marijuana or

any drug on their person to also have marijuana or other drugs in

their car; and (2) because it is illegal to transport marijuana in an

“open container” like an unsealed baggie, the possession of such a

baggie indicated “there is possibly other illegal substances in that

vehicle.”

¶ 5 Daly conducted a “cursory search” of the driver’s door

compartment and found an empty marijuana container. Daly then

brought out her trained police dog who alerts to marijuana and

methamphetamine, among other drugs. The dog alerted to the

driver’s side of the car. So Daly conducted a hand search of the

car, which uncovered a small bag of methamphetamine and a pipe.

¶ 6 Snodgrass was charged with possession of a controlled

substance (methamphetamine); possession of drug paraphernalia;

and illegal use, consumption, or possession of marijuana in a motor

vehicle.

¶ 7 Before trial, Snodgrass moved to suppress the items found in

the car following the dog sniff. He argued that the officers’

deployment of the marijuana-detecting dog violated the Colorado

3

Constitution as interpreted in People v. McKnight, 2017 COA 93

(McKnight I), aff’d, 2019 CO 36 (McKnight II), because they did not

have a reasonable suspicion of criminal activity before the dog

sniff.

1

¶ 8 The trial court denied the suppression motion, reasoning that

McKnight I was not binding because it was an unpublished

opinion.

2

Relying on pre-McKnight I case law, the court concluded

that reasonable suspicion was not required because the dog sniff

was not a search under the state constitution. But the court also

ruled that, even if McKnight I were binding, the dog sniff was legal

because the officers reasonably suspected that evidence of illegal

activity would be found in Snodgrass’s car. Because the court

decided that the dog sniff was legal, the court did not resolve the

prosecution’s contention that the officers relied in good faith on pre-

McKnight I case law.

1

At the time, People v. McKnight, 2019 CO 36, had not yet been

announced.

2

The trial court was mistaken; the opinion was published and thus

precedential. See C.A.R. 35(e).

4

¶ 9 At trial, Reder and Daly testified to their encounter with

Snodgrass, and the trial court admitted into evidence body camera

footage capturing the encounter. The court also admitted the

methamphetamine and pipe found in Snodgrass’s car. A jury

convicted him as charged.

II. Suppression of Items Found As a Result of the Dog Sniff

¶ 10 Snodgrass contends that the trial court erred by denying his

motion to suppress the methamphetamine and pipe discovered after

the dog sniff of his car. Specifically, he argues that, because the

dog could detect marijuana, the dog sniff was a search that was not

supported by probable cause as required by McKnight II. According

to Snodgrass, everything found after the dog sniff was the fruit of

that illegal search. We agree, and we also reject the People’s claim

that suppression was unwarranted because the officers acted in

good faith reliance on existing judicial precedent.

A. Probable Cause Did Not Exist

¶ 11 Appellate courts apply a mixed standard of review to

suppression issues. People v. Chavez-Barragan, 2016 CO 66, ¶ 34.

We defer to a trial court’s findings of fact as long as they are

5

supported by the record, and we review de novo the court’s

conclusions of law. People v. Cattaneo, 2020 COA 40, ¶ 15.

¶ 12 The Fourth Amendment of the United States Constitution and

article II, section 7 of the Colorado Constitution prohibit

unreasonable searches and seizures. See People v. Allen, 2019 CO

88, ¶ 15. A warrantless search or seizure is presumptively

unreasonable and thus unconstitutional unless an exception to the

warrant requirement applies. See Cattaneo, ¶ 17. One such

exception is the automobile exception, which allows an officer to

search a car without first obtaining a warrant if the officer has

lawfully stopped the car and has probable cause to believe it

contains evidence of a crime. See McKnight II, ¶ 24.

¶ 13 In McKnight II, ¶ 7, our supreme court held that a sniff from a

drug-detection dog trained to alert to marijuana constitutes a

search under article II, section 7 of the Colorado Constitution

because that sniff can detect lawful activity — namely, the legal

possession of up to one ounce of marijuana by adults twenty-one

and older. The court further held that, “in Colorado, law

enforcement officers must have probable cause to believe that an

item or area contains a drug in violation of state law before

6

deploying a drug-detection dog that alerts to marijuana for an

exploratory sniff.” Id.

¶ 14 The People do not dispute that McKnight II applies here, and

we agree that it applies because Snodgrass’s convictions are not yet

final. See People v. Versteeg, 165 P.3d 760, 766 (Colo. App. 2006).

¶ 15 A police officer has probable cause to conduct a search when

the facts available to the officer “‘would warrant a [person] of

reasonable caution in the belief’ that contraband or evidence of a

crime is present.” People v. Zuniga, 2016 CO 52, ¶ 16 (citation

omitted). Probable cause is an objective, commonsense

determination based on the totality of the circumstances. Id.

¶ 16 In support of probable cause, the People rely on the following

circumstances known to the officers before the dog search:

• Snodgrass was unusually nervous and made unusual

comments such as saying he did not have any warrants.

• He had a legal amount of marijuana in his pocket.

• Officer Reder testified that the baggie of marijuana “raised

flags” because it was illegally transported in an “open

container.”

7

• Reder testified that it is common to find illegal drugs in a car

when drugs are found on the occupant’s body.

• An empty marijuana container was found in the driver’s

compartment of the car.

We conclude that these facts did not supply probable cause to

believe that Snodgrass’s car contained drugs illegal under state law.

¶ 17 First, Snodgrass’s uncommon nervousness and curious

comment about not having warrants could be explained by the fact

he actually had a warrant that he was worried the police would

discover. Although a readily apparent alternative explanation does

not make these behaviors irrelevant to the probable cause analysis,

it tempers their significance.

¶ 18 Second, contrary to the officer’s belief, the baggie of marijuana

was not, in fact, an illegal open marijuana container. A receptable

containing marijuana is an unlawful open marijuana container only

if it is open or has a broken seal and “[t]here is evidence that

marijuana has been consumed within the motor vehicle.” § 42-4-

1305.5(1)(c), C.R.S. 2021. As explained infra, the evidence did not

show such use here; the officers did not even suggest that it did.

8

¶ 19 As a result, the facts known to the officers simply showed

unusual (but understandable) nervousness and entirely legal

conduct. Of course, non-criminal and legally ambiguous conduct

may be relevant to the probable cause inquiry. See Zuniga, ¶ 21.

Even so, the non-criminal conduct here was merely possessing a

legal amount of marijuana in a legal receptacle while also

possessing a legal empty marijuana container. We acknowledge the

officer’s opinion that finding illegal drugs in a car is more likely

where legal drugs are found on a driver or passenger. But we

cannot assign a great deal of weight to that opinion, else we would

give officers essentially carte blanche to search a car whenever they

find a legal amount of marijuana on the car’s driver or passenger.

So, even considered in their totality, these circumstances were not

sufficient to establish probable cause to believe Snodgrass’s car

contained illegal drugs. Cf. State v. Carter, 848 P.2d 599, 602 (Or.

1993) (“A fact that merely supports an inference that some other

fact is possible — as one among the range of many other and

different possibilities — does not support an inference that any

specific one of the possible facts is itself probable.”).

9

¶ 20 Comparisons to Zuniga and McKnight II confirm our

conclusion. In Zuniga, the supreme court concluded that the

troopers had probable cause to search the vehicle based on (1) a

drug-detection dog’s alert to the car; (2) the “vast inconsistencies”

between the two defendants’ stories about their time in Colorado;

(3) the defendants’ “exceptional nervousness” during the traffic

stop; and (4) one trooper’s detection of a “strong odor of raw

marijuana.” Zuniga, ¶¶ 1, 26-30. Plainly, the facts supporting

probable cause in Zuniga were stronger than in this case.

¶ 21 The supreme court found probable cause lacking in

McKnight II, ¶ 58, where the evidence showed proximity to a house

where illicit drugs had been found before and the presence of a

person who had used an illegal drug at some point. Here, there was

not even a clear connection to past illicit drug possession. Hence, if

the facts of McKnight II were insufficient to establish probable

cause, the facts in this case were not enough to establish a fair

probability that contraband under state law would be found in

Snodgrass’s car. The dog search of his car, therefore, violated the

Colorado Constitution.

10

B. Good Faith Exception Does Not Apply

¶ 22 Although the Fourth Amendment contains no provision

precluding the use of evidence obtained in violation of its

commands, the United States Supreme Court has developed the

exclusionary rule to suppress such evidence in order to deter

unlawful police conduct. See Casillas v. People, 2018 CO 78M,

¶ 19; People v. Dominguez-Castor, 2020 COA 1, ¶ 19. The Colorado

Supreme Court has concluded that the exclusionary rule also

applies to violations of article II, section 7 of the Colorado

Constitution. See McKnight II, ¶ 61; People v. Morley, 4 P.3d 1078,

1080 (Colo. 2000).

¶ 23 The exclusionary rule, however, should not be automatically

applied every time a constitutional violation is found. See Casillas,

¶ 21. For instance, “when the police conduct a search in objectively

reasonable reliance on binding appellate precedent, the

exclusionary rule does not apply.” Davis v. United States, 564 U.S.

229, 249-50 (2011); see People v. Barry, 2015 COA 4, ¶ 34. For

purposes of this exception, precedent is binding if it addressed or

validated the police conduct at issue in the case where the

exception is asserted. See People v. Folsom, 2017 COA 146M, ¶ 19.

11

¶ 24 Whether a police officer’s actions were in objectively

reasonable reliance on appellate court precedent is a legal question

we review de novo. Barry, ¶ 20.

¶ 25 Recall that the dog sniff in this case took place before

McKnight I or McKnight II had been announced. The People contend

that suppression of the evidence was not warranted because the

police deployed the dog in objectively reasonable, good faith reliance

on earlier Colorado Supreme Court cases holding that walking a

narcotics-detection dog around a car is a not a search under the

state constitution.

¶ 26 True, in People v. Esparza, 2012 CO 22, ¶ 11, our supreme

court rejected the proposition that permitting a trained narcotics

dog to sniff outside a closed container such as a car is a search

within the meaning of the state constitution. The explicit premise

of this holding was that the alert of a trained narcotics-detection

dog could indicate nothing more than the presence or absence of

contraband (i.e., an item illegal to possess). Id.; see also id. at ¶ 8

(“We have never suggested, however, that a privacy interest in the

possession of contraband could be considered reasonable or that a

drug detection dog could reveal more about the contents of a closed

12

container than some likelihood that they do or do not include

contraband.”); People v. Holmes, 959 P.2d 406, 417 (Colo. 1998)

(recognizing that “contraband” generally means goods whose

importation, exportation, or possession is forbidden). Shortly

thereafter, the supreme court repeated Esparza’s conclusion that

“walking a trained narcotics detection dog around a car that has

not been unlawfully stopped or detained does not implicate the

protections of either the Fourth Amendment or Article II, section 7

of the state constitution.” People v. Mason, 2013 CO 32, ¶ 10.

¶ 27 The Esparza decision, however, was announced before the

2012 passage of Amendment 64 to the Colorado Constitution. See

Colo. Const. art. XVIII, § 16. And, while Mason was announced

months after Amendment 64 took effect, the Mason court did not

address the amendment’s impact. Cf. McKnight II, ¶¶ 28, 34

(including Mason as a part of “Colorado Law: Pre-Amendment 64”).

Instead, the court upheld the suppression of evidence for reasons

unrelated to whether the dog sniff constituted a search. See Mason,

¶ 17.

¶ 28 Amendment 64 provides that it is “not unlawful and shall not

be an offense under Colorado law” for a person who is at least

13

twenty-one years of age to possess one ounce or less of marijuana.

Colo. Const. art. XVIII, § 16(3). Because such a person may

lawfully possess marijuana in a small amount, a drug-detection dog

that alerts to marijuana can no longer be said to detect only

contraband. McKnight II, ¶ 43. Therefore, following Amendment

64, “the rationale underlying Esparza no longer holds true” in the

case of a dog trained to alert to marijuana in any amount. Id.

Amendment 64 was adopted well before the dog sniff in this case.

¶ 29 Additionally, in a case announced before the dog sniff here,

our supreme court expressly declared that Amendment 64 made

“marijuana use, possession, and growth . . . lawful under Colorado

law in certain circumstances.” Zuniga, ¶ 18. Because “Colorado

law makes certain marijuana-related activities lawful and others

unlawful,” the court held the odor of marijuana is still suggestive of

criminal activity and can contribute to a probable cause

determination. Id. at ¶¶ 18, 23. In doing so, however, the court

recognized that the odor of marijuana is a legally ambiguous fact in

light of Amendment 64. See id. at ¶ 21; see also id. at ¶ 29 (The

dog’s “alert could have stemmed from the two men’s possession of a

legal amount of marijuana, but it also could have stemmed from the

14

possession of an illegal amount of marijuana or any amount of

cocaine, methamphetamine, or heroin.”); People v. Cox, 2017 CO 8,

¶¶ 3, 17 (applying Zuniga).

¶ 30 Accordingly, as indicated in Zuniga, Amendment 64 eliminated

the premise of Esparza’s conclusion that a sniff by a marijuana-

detecting dog is not a search under the state constitution. See

McKnight II, ¶ 36 (explaining that the supreme court in Zuniga

acknowledged that, “with the legalization of small amounts of

marijuana, a dog’s alert doesn’t provide a yes-or-no answer to the

question of whether illegal narcotics are present in a vehicle”).

Because the state of affairs addressed in Esparza (i.e., where a dog’s

alert exposes only contraband) no longer existed at the time of the

search here, we are not convinced that it was objectively reasonable

for the officers to rely on Esparza. Cf. United States v. Leon, 468

U.S. 897, 919 n.20 (1984) (“The objective standard . . . requires

officers to have a reasonable knowledge of what the law prohibits.”).

¶ 31 Indeed, because the premise of Esparza (and Mason) no longer

existed after Amendment 64 became effective, the supreme court in

McKnight II had no need to, and did not, overrule Esparza as

wrongly decided. Cf. Davis, 564 U.S. at 232 (concluding that the

15

good faith exception to the exclusionary rule may apply “when the

police conduct a search in compliance with binding precedent that

is later overruled”). Rather, the McKnight II court recognized that

Esparza was not applicable in light of Amendment 64. See

McKnight II, ¶ 43. (Thus, the court had no reason to wrestle with

stare decisis principles.) To reiterate, Amendment 64 became

effective before the dog search here.

¶ 32 In other words, the Esparza decision did not address the

question presented here: “whether the sniff of a dog trained to

detect marijuana in addition to other substances is a search under

a state constitution in a state that has legalized marijuana.”

McKnight II, ¶ 47. Because no binding precedent had approved the

police conduct at issue here, we cannot say that the police acted in

objectively reasonable reliance on such precedent. See People v.

Restrepo, 2021 COA 139, ¶¶ 14-15; Folsom, ¶ 19.

3

3

While the People cite the good faith exception in section 16-3-308,

C.R.S. 2021, they do not argue that the analysis under that statute

should differ from the analysis of whether the officers acted in

objectively reasonable reliance within the meaning of Davis v.

United States, 564 U.S. 229 (2011), and its progeny. Thus, we do

not separately discuss the statute.

16

¶ 33 Given all this, we conclude that the trial court erred by

denying the motion to suppress the items found as a result of the

dog search. The People do not maintain that this error was

harmless beyond a reasonable doubt. See Bartley v. People, 817

P.2d 1029, 1034 (Colo. 1991). Nor can we conclude that it was,

given that those items were the linchpin of Snodgrass’s convictions

for possession of a controlled substance and drug paraphernalia.

We thus reverse those convictions.

III. Suppression of the Empty Marijuana Container

¶ 34 Snodgrass also argues that the trial court erred by denying his

motion to suppress the empty marijuana container found by Officer

Daly during her “cursory search of the driver’s compartment.” This

search occurred before the dog sniff.

¶ 35 We need not resolve this issue, for three reasons: (1) the empty

container was not itself the subject of any conviction; (2) even if it is

considered when analyzing whether probable cause supported the

dog search, probable cause was lacking; and (3) even if it is

considered when analyzing whether sufficient evidence supported

the conviction for possessing an open marijuana container, the

17

evidence was not enough, as we will explain next. So resolving this

issue would have no bearing on this or future proceedings.

IV. Illegal Use, Consumption, or Possession of Marijuana

in a Motor Vehicle

¶ 36 Finally, Snodgrass contends that (1) the trial court erred by

failing to instruct the jury on the definition of “open marijuana

container” and (2) the evidence was insufficient to sustain the

conviction related to that container. Because we agree with the

second contention, we need not address the first.

A. Applicable Law

¶ 37 We review de novo sufficiency of the evidence claims. McCoy v.

People, 2019 CO 44, ¶ 27. In determining whether there is

sufficient evidence to sustain a defendant’s conviction, we consider

whether the evidence, both direct and circumstantial, when viewed

as a whole and in the light most favorable to the verdict, is

substantial and sufficient to support a conclusion by a reasonable

mind that the defendant is guilty of the charge beyond a reasonable

doubt. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). We give

the prosecution the benefit of all reasonable inferences that might

18

fairly be drawn from the evidence. People v. Perez, 2016 CO 12,

¶ 25.

¶ 38 A person commits the offense at issue if the person, while in

the passenger area of a motor vehicle on a public highway or the

right-of-way of a public highway, knowingly (1) uses or consumes

marijuana or (2) has in his or her possession an open marijuana

container. § 42-4-1305.5(2)(a). As noted, an “open marijuana

container” means a receptable or marijuana accessory that contains

marijuana and that is “open or has a broken seal,” the “contents of

which are partially removed,” and “[t]here is evidence that

marijuana has been consumed within the motor vehicle.” § 42-4-

1305.5(1)(c).

B. Application

¶ 39 The parties debate whether the evidence showed that

marijuana had been consumed within Snodgrass’s car. The People

rely on the following evidence to prove such consumption:

(1) Snodgrass was the sole occupant; (2) he was slumped over the

steering wheel when the officer first approached; (3) his demeanor

and his responses to the officer’s questions were unusual; (4) the

officer found marijuana in Snodgrass’s pocket; (5) the marijuana

19

was stored in a baggie that “provided relatively easy access”; and

(6) the police found an empty marijuana container,

methamphetamine, a pipe, and alcohol in the car.

¶ 40 We disagree with the People that this evidence permitted a

finding beyond a reasonable doubt that Snodgrass had “consumed

at least some of the marijuana from the Ziploc bag within his

vehicle.” This evidence did not reveal more than speculation about

possible marijuana use, as opposed to possession. Cf. People v.

Sprouse, 983 P.2d 771, 778 (Colo. 1999) (“[V]erdicts in criminal

cases may not be based on guessing, speculation, or conjecture.”).

This is especially true given the officer’s testimony that he did not

observe “any signs of impairment” in Snodgrass. For instance, the

officer did not observe watery eyes or diluted pupils. Nor did the

officer report any odor of marijuana.

¶ 41 Consequently, to hold that the above evidence was sufficient to

convict Snodgrass of possessing an open marijuana container

would be to effectively subtract from the statute the requirement

that the evidence show actual marijuana consumption in the car.

But we may “not add words to the statute or subtract words from

it.” People v. Diaz, 2015 CO 28, ¶ 12 (citation omitted).

20

¶ 42 Accordingly, we vacate Snodgrass’s conviction for this charge.

V. Conclusion

¶ 43 As to the convictions for possession of a controlled substance

and possession of drug paraphernalia, the judgment is reversed. As

to the conviction for illegal use, consumption, or possession of

marijuana in a motor vehicle, the judgment is vacated.

JUDGE PAWAR concurs.

JUDGE GROVE concurs in part and dissents in part.

21

JUDGE GROVE concurring in part and dissenting in part.

¶ 44 I agree with the majority’s conclusion that the evidence was

insufficient to sustain Snodgrass’s conviction for illegal use,

consumption, or possession of marijuana in a motor vehicle. But I

respectfully disagree with the majority’s application of the good faith

exception to the exclusionary rule and its conclusion that the

results of the dog sniff by Officer Daly’s K-9 must be suppressed.

At the same time, however, for reasons that I explain further below,

I have grave doubts about the constitutionality of the subsequent

hand search of Snodgrass’s vehicle.

¶ 45 Nevertheless, because Snodgrass challenges only the

constitutionality of the dog sniff — arguing that the subsequent

hand search should have been suppressed as fruit of the poisonous

tree — and does not otherwise argue that the officers lacked

probable cause for the hand search, I would reluctantly affirm the

trial court’s denial of the suppression motion. See Compos v.

People, 2021 CO 19, ¶ 35 (emphasizing that the party presentation

principle applies in both civil and criminal cases (citing Greenlaw v.

United States, 554 U.S. 237, 243-44 (2008))).

22

I. The Dog Sniff

¶ 46 I agree with the majority that, because Daly’s K-9 was trained

to alert to legal amounts of marijuana as well as other illegal

substances, the dog sniff was a valid search under the Colorado

Constitution only if it was supported by probable cause. See People

v. McKnight, 2019 CO 36 (McKnight II). I also agree with the

majority’s conclusion that, under the totality of the circumstances,

the officers did not have probable cause to conduct the dog-sniff

search at the time that Daly deployed the K-9.

¶ 47 But I part ways with the majority (and with People v. Restrepo,

2021 COA 139, which addressed substantially the same issue)

when it comes to the question whether the officers’ actions were

consistent with existing case law, thus triggering the good faith

exception to the exclusionary rule. I would apply the good faith

exception here because, notwithstanding the voters’ adoption of

Amendment 64 in 2012, Daly conducted the dog sniff “in objectively

reasonable reliance on binding appellate precedent.” Davis v.

United States, 564 U.S. 229, 249-50 (2011). Indeed, on the date of

Snodgrass’s encounter with the police, our supreme court had

declared it “settled” — in an opinion issued after the passage of

23

Amendment 64 — that “walking a trained narcotics detection dog

around a car that has not been unlawfully stopped or detained does

not implicate the protections of either the Fourth Amendment or

Article II, section 7 of the state constitution.” People v. Mason, 2013

CO 32, ¶ 10. Whether or not this statement was dicta is beside the

point. Mason, like the cases that it relied on, expressly approved of

the precise actions that Daly performed — using a trained

narcotics-detection dog to sniff a car that had not been unlawfully

stopped or detained without regard to probable cause. Id.; see also

Illinois v. Caballes, 543 U.S. 405, 409 (2005); People v. Esparza,

2012 CO 22, ¶ 2.

¶ 48 To be sure, Amendment 64 fundamentally altered the playing

field when it comes to the use of dog sniffs that do not differentiate

between legal and illegal substances. But until the release of the

splintered opinion in People v. McKnight, 2017 COA 93 (McKnight I),

no Colorado case had held that a dog sniff constituted a search,

much less a search that must be predicated on probable cause. As

the majority correctly notes, relying on pre-McKnight I case law at

the suppression hearing, “the [trial] court concluded that

24

reasonable suspicion was not required because the dog sniff was

not a search under the state constitution.” Maj. op. at ¶ 8.

¶ 49 Nor, at the time, was there case law deciding whether an alert

from a dog trained to detect marijuana and other substances,

standing on its own, could establish probable cause for a hand

search. In fact, in two post-Mason (and post-Amendment 64) cases,

the supreme court acknowledged but expressly reserved that

question for another day. See People v. Cox, 2017 CO 8, ¶ 22 n.5;

People v. Zuniga, 2016 CO 52, ¶ 30 n.6.

¶ 50 I do not think it realistic to hold police officers to the same

standards as appellate judges and justices — who, in McKnight I

and II generated no fewer than six different opinions — when it

comes to predicting the effect of Amendment 64 on the

permissibility of dog-sniff searches. Simply put, existing case law at

the time of Snodgrass’s encounter with the police made clear that a

dog sniff was not a search. And while Amendment 64’s effective

redefinition of “contraband” in the context of marijuana pulled the

rug out from under that precedent, I do not believe that it was

obvious at the time of the search here — or, even had it been

obvious from a jurisprudential standpoint, that it would be

25

reasonable to expect the officers to ignore Mason. I therefore

respectfully disagree with the majority’s conclusion that the good

faith exception did not apply.

II. The Hand Search

¶ 51 Application of the good faith exception, however, does not

necessarily end the inquiry because the K-9’s alert in this case led

to another search — during which Daly discovered the

methamphetamine. The majority concludes that the results of the

hand search should be suppressed because they were the fruit of

the unconstitutional dog sniff. But if, as I believe, the dog sniff was

done in good faith reliance on existing appellate precedent, then the

fruit of the poisonous tree doctrine would not apply. See People v.

Hagos, 250 P.3d 596, 619 (Colo. App. 2009).

¶ 52 But that raises the question whether, if the police did not have

probable cause to conduct the dog sniff in the first place, the K-9’s

alert provided Daly with enough additional information to supply

probable cause for the hand search. I would likely answer that

question in the negative because, as was the case in McKnight I and

II, the dog’s alert gave the officer no way of determining whether the

car contained lawful or unlawful substances. In other words, Daly

26

had no more actionable information after the dog sniff than she did

before it. And because I agree with the majority that probable

cause did not exist before the dog sniff, I see no reason to believe

that it would exist afterward, either.

¶ 53 Normally, that would be enough to reverse the suppression

ruling. But as I noted above, our supreme court has made clear

that we are bound by the party presentation principle. See Compos,

¶ 35. The People’s answer brief points out in a footnote that

Snodgrass “does not separately challenge on appeal probable cause

for the search of the vehicle’s interior that occurred after the dog

sniff.” I agree with that reading and note that Snodgrass did not

contest that characterization of his argument in the reply brief.

Thus, although I believe that Daly’s hand search of the vehicle was

on highly questionable constitutional footing, I would reluctantly

affirm the trial court’s denial of Snodgrass’s suppression motion.