The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY June 30, 2022
2022COA70
No. 19CA1727, People v. Lopez — Constitutional Law —
Colorado Constitution — Searches and Seizures — Exclusionary
Rule — Good Faith Exception; Drug-Detection Dogs
In light of Amendment 64 and People v. McKnight, 2019 CO
36, a division of the court of appeals considers whether, when
evidence is obtained through a search later determined to be a
violation of a defendant’s rights under article II, section 7 of the
Colorado Constitution, the police acted in reasonable reliance on
certain precedent, and consequently, whether the good faith
exception to the exclusionary rule should apply.
In People v. Esparza, 2012 CO 22, and People v. Mason, 2013
CO 32, the supreme court held that a dog sniff of the exterior of a
car is not, under the state constitution, a “search” requiring a justification of any sort. In McKnight, however, the supreme court
held that the 2012 passage of Amendment 64 decriminalizing, in
certain circumstances, the possession of marijuana created a state
constitutional “privacy interest” in vehicles, rendering dog sniffs
“searches.”
The police conducted their dog sniff of the car here after the
passage of Amendment 64 but before McKnight was announced. In
People v. Restrepo, 2021 COA 139, a division of this court held that,
in these circumstances the police could no longer, in light of the
passage of Amendment 64, consider Esparza and Mason binding
authority upon which they could rely in good faith.
In this case, the division supplements Restrepo’s reasoning
with consideration of the supreme court’s decision in People v.
Zuniga, 2016 CO 52, concluding that Zuniga effectively put the
police and public on notice that the Esparza and Mason decisions
could no longer be relied on as settled law.
The division concludes that, lacking a showing of probable
cause by the People on appeal, the evidence discovered in the car
should be suppressed. See McKnight, ¶ 61. COLORADO COURT OF APPEALS 2022COA70
Court of Appeals No. 19CA1727 El Paso County District Court No. 16CR4333 Honorable Gregory R. Werner, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jason Robert Lopez,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE DAILEY Berger and Tow, JJ., concur
Announced June 30, 2022
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kimberly Penix, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jason Robert Lopez, appeals the judgment of
conviction entered on jury verdicts finding him guilty of six counts
of possessing a controlled substance and as a special offender on
four of those counts for possessing a weapon during a drug crime.
We reverse and remand for a new trial.
I. Background
¶2 On August 17, 2016, Detective Kristopher Fish pulled Lopez
over in Colorado Springs for driving a vehicle without a valid
registration and failing to signal while turning. At the time, a
passenger — Naudia Delozier — was also in the car.
¶3 Noticing, among other things, how nervous Lopez was,
Detective Fish summoned a K-9 unit to conduct a dog sniff of the
exterior of the vehicle. After the dog alerted to the presence of
narcotics, the police searched the interior of the vehicle, finding
illegal narcotics,1 a loaded semiautomatic handgun, and a bag of
tools.
1The drugs were methamphetamine, heroin, psilocyn, diazepam, alprazolam, and morphine.
1 ¶4 The police arrested Lopez but not Delozier. At trial, Lopez’s
defense was that the drugs were Delozier’s.
¶5 The jury subsequently found Lopez guilty of all counts, and,
after adjudicating him an habitual offender based on seven prior
felony convictions, the trial court sentenced him to a term of sixty-
four years’ imprisonment in the custody of the Department of
Corrections.
¶6 Lopez now appeals, contending that the trial court erred by (1)
denying his motion to suppress evidence recovered in the search of
the car; (2) excluding Delozier’s hearsay statements exculpating
him; and (3) allowing prosecutorial misconduct during closing
argument.
¶7 Because we agree with Lopez’s first contention, we see no need
to address the other two.
II. Suppression of Evidence
¶8 Lopez contends that the trial court erred by not excluding
evidence obtained as the result of an illegal, exploratory dog sniff of
the vehicle’s exterior. The dog sniff was illegal, he says, because, as
the trial court found, it was not supported by probable cause. We
agree and conclude that reversal is required.
2 A. Facts
¶9 Before the execution of the dog sniff of the car,
Detective Fish saw Lopez having difficulty opening his
window and, after getting out of the vehicle, appearing
nervous (breathing rapidly and reaching into his
pockets);
Lopez told Detective Fish that he had recently been
released from prison and was out on bond in a pending
narcotics case; and,
Lopez also told Detective Fish that, although he lived in
Aurora, he was in Colorado Springs doing construction
work (a claim the detective found suspicious because
Lopez was dressed in clean clothes, an ironed shirt, and
“designer shoes”).
B. Dog Sniff “Searches”
¶ 10 Article II, section 7 of the Colorado Constitution and the
Fourth Amendment to the United States Constitution protect
against unreasonable searches and seizures. People v. Johnson,
2021 CO 35, ¶ 19.
3 ¶ 11 In People v. Mason, 2013 CO 32, ¶ 10, the supreme court said
it was “settled 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.” (citing Illinois v.
Caballes, 543 U.S. 405, 409 (2005)); accord People v. Esparza, 2012
CO 22, ¶ 2. The court reasoned that because a dog sniff for drugs
could only reveal the presence of illegal (or contraband) substances
in which there could be no legitimate expectation of privacy, the
sniff would not constitute a “search” under those constitutional
provisions. See Caballes, 543 U.S. at 409; Mason, ¶ 10; Esparza,
¶ 11.
¶ 12 In 2012, Coloradans passed Amendment 64 to the Colorado
Constitution. See Colo. Const. art. XVIII, § 16. Amendment 64
provides that it is “not unlawful and shall not be an offense under
Colorado law” for a person who is at least twenty-one years of age to
4 possess one ounce or less of marijuana. Colo. Const. art. XVIII,
§ 16(3).2
¶ 13 In People v. McKnight, 2017 COA 93 (McKnight I), aff’d, 2019
CO 36, a division of this court held that, because Amendment 64
“legalized possession for personal use of one ounce or less of
marijuana by persons twenty-one years of age or older . . . , it is no
longer accurate to say . . . that an alert by a dog which can detect
marijuana (but not specific amounts) can reveal only the presence
of ‘contraband.’” Id. at ¶ 17. Consequently, because “[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,” it is
a “search” under the Colorado Constitution. Id. at ¶¶ 17, 18. This
type of “search,” the division held, has to be justified by a
reasonable suspicion that evidence of illegal activity will be found in
the car. Id. at ¶ 20.
2The supreme court’s Esparza decision was announced before the 2012 passage of Amendment 64. And, while its Mason decision was announced months after Amendment 64 took effect, the court did not address the amendment’s impact in Mason.
5 ¶ 14 On certiorari review, the supreme court upheld the division’s
determination that, in light of Amendment 64’s adoption, a dog sniff
is a “search” under the Colorado Constitution. People v. McKnight,
2019 CO 36, ¶ 48 (McKnight II). But, the supreme court said, this
type of search has to be justified by a showing of probable cause,
and not just reasonable suspicion. Id. at ¶¶ 49-50; see People v.
Cox, 2017 CO 8, ¶ 26 (“[P]robable cause is more demanding
than . . . reasonable suspicion . . . .”).
¶ 15 McKnight I was decided on July 13, 2017, nearly eleven
months after Detective Fish summoned the K-9 unit to conduct the
dog sniff.
¶ 16 McKnight II was decided on May 20, 2019.
C. The Trial Court’s Suppression Ruling
¶ 17 The trial court conducted the suppression hearing in this case
on March 7, 2019, nearly two years after McKnight I but nearly two
and a half months before McKnight II.
¶ 18 At the suppression hearing, Lopez primarily argued that the
detective’s deployment of a marijuana-detecting dog violated the
Colorado Constitution as interpreted in McKnight I because the
6 police did not have a reasonable suspicion of criminal activity before
deploying the dog to sniff the car.
¶ 19 But Lopez’s attorney also argued that “having somebody
nervous who is on bond [and] just been released from prison does
not give any probable cause for a police officer to react.” And
counsel agreed that the court was correct in summarizing his
position as, “So you are saying . . . lack of reasonable suspicion to
stop to begin with, lack of cause to detain slash pat-down
defendant, lack of probable cause or reasonable grounds to conduct
the dog sniffs, or reasonable suspicion.” (Emphasis added.)3
¶ 20 The trial court denied Lopez’s motion to suppress, finding that
the dog sniff was proper because it was supported by circumstances
3 Though presenting a close question, this, in our view, was sufficient to preserve Lopez’s appellate argument that the dog sniff had to be supported by probable cause. See Rael v. People, 2017 CO 67, ¶ 17 (holding that to preserve an argument for appeal, a party must draw the district court’s attention to the asserted error, thus allowing the court “a meaningful chance to prevent or correct the error” and creating a record for appellate review (quoting Martinez v. People, 2015 CO 16, ¶ 14)); People v. Melendez, 102 P.3d 315, 322 (Colo. 2004) (no “talismanic language” is required to properly preserve an issue for review on appeal).
7 known to the police constituting reasonable suspicion,4 though not
probable cause.
D. Analysis
¶ 21 On appeal, Lopez relies on the trial court’s finding that the
police did not have probable cause to conduct a search before
deploying the dog. He contends that (1) the trial court’s
determination that the police lacked probable cause to search at
that point means the search was illegal under McKnight II; and (2)
because his case was pending on appeal when McKnight II was
announced, he is entitled to its retroactive application.
¶ 22 Lopez is entitled to the retroactive application of McKnight II.
See People v. Versteeg, 165 P.3d 760, 766 (Colo. App. 2006). But
that does not necessarily mean that he is entitled to relief on
appeal.
¶ 23 When the police conduct a search or seizure in violation of the
constitution, the exclusionary rule may require suppression of the
4 The trial court made this finding, despite having determined that it was not bound by McKnight I because it was an unpublished opinion. The trial court was mistaken; the opinion was published and thus precedential. See C.A.R. 35(e).
8 fruits of that search or seizure. People v. Tomaske, 2019 CO 35,
¶ 10. But “the exclusionary rule should not automatically apply
every time a [constitutional] violation is found.” Casillas v. People,
2018 CO 78M, ¶ 21 (quoting People v. Gutierrez, 222 P.3d 925, 941
(Colo. 2009)) (discussing federal, Fourth Amendment exclusionary
rule).
¶ 24 “Because ‘the exclusionary rule is intended to deter improper
police conduct[,]’ it ‘should not be applied in cases where the
deterrence purpose is not served, or where the benefits associated
with the rule are minimal in comparison to the costs associated
with the exclusion of probative evidence.’” Id. (quoting People v.
Altman, 960 P.2d 1164, 1168 (Colo. 1998)).
¶ 25 “[W]hen the police act with an objectively ‘reasonable good-
faith belief’ that their conduct is lawful, or when their conduct
involves only simple, ‘isolated’ negligence, the ‘deterrence rationale
loses much of its force,’ and exclusion cannot ‘pay its way.’” Davis
v. United States, 564 U.S. 229, 238 (2011) (citations omitted).5
5 Lopez asserts that we shouldn’t address the good faith exception issue, since it wasn’t raised in the trial court. But neither was Lopez’s reliance on our supreme court’s decision in People v.
9 ¶ 26 Thus, the exclusionary rule should not be applied “when the
police conduct a search in objectively reasonable reliance on
binding appellate precedent.” Id. at 249-50; see People v. Barry,
2015 COA 4, ¶ 34 (same). “[F]or precedent to be binding under the
good faith reliance exception, the precedent must ‘address or
validate the police conduct at issue’ in the case where it is sought to
be applied.” People v. Restrepo, 2021 COA 139, ¶ 14 (quoting
People v. Folsom, 2017 COA 146M, ¶ 19).
¶ 27 Distinguishable from a situation involving “binding” precedent
is “when the law governing the constitutionality of a particular
search is unsettled.” See United States v. Berrios, 990 F.3d 528,
532 (7th Cir. 2021) (quoting Davis, 564 U.S. at 250 (Sotomayor, J.,
concurring in the judgment)). In that situation, the good faith
exception to the exclusionary rule is inapplicable because a police
officer is just “guessing at what the law might be, rather than
McKnight, 2019 CO 36 (McKnight II). The reason, in each instance, was the same: McKnight II hadn’t been decided yet. Consequently, the People didn’t have anything to defend against, or Lopez to rely on, with respect to the necessity of a probable cause showing.
10 relying on what a binding legal authority tells him it is.” United
States v. Lee, 862 F. Supp. 2d 560, 569 (E.D. Ky. 2012).
¶ 28 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.
¶ 29 At the time of the police conduct at issue here, no Colorado
appellate decision had held that a dog sniff of the exterior of a car
was a “search.” Indeed, Esparza and Mason had held just the
opposite. In Restrepo, ¶¶ 17-21, however, a division of this court
rejected the People’s reliance on that authority, because it could no
longer be considered “binding” in the aftermath of Amendment 64’s
passage in 2012.
¶ 30 We reach the same conclusion the division in Restrepo did, but
for a somewhat different — or additional — reason. When the
police deployed the dog in this case, they would not have had to
foresee, anticipate, or predict, wholly unaided, the effect of
Amendment 64 on the permissibility of dog sniff searches. Existing
case law at the time of Lopez’s encounter with the police would have
put the police on notice that Amendment 64 had changed the legal
11 landscape and undercut the rationale underlying Mason and
Esparza.
¶ 31 On June 27, 2016 — nearly two months before the dog sniff in
this case — the supreme court expressly declared that “[s]ince
passage of ‘Amendment 64’ to the Colorado Constitution in 2012,
marijuana use, possession, and growth are lawful under Colorado
law in certain circumstances.” People v. Zuniga, 2016 CO 52, ¶ 18.6
¶ 32 Accordingly, as indicated in Zuniga, Amendment 64 eliminated
the premise of Esparza’s and Mason’s conclusions that a sniff by a
marijuana-detecting dog is not a search under the state
constitution. See id. at ¶ 49 n.3 (Hood, J., dissenting) (noting that
(1) “the assumption that narcotics detection dogs only detect
contraband has been critical in past cases holding that dog sniffs
6 In Zuniga, the supreme court addressed the question whether, in light of Amendment 64, the odor of marijuana was still suggestive of criminal activity and thus relevant to a probable cause determination. The court held that it was because “Colorado law makes certain marijuana-related activities lawful and others unlawful.” People v. Zuniga, 2016 CO 52, ¶¶ 18, 23; 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 possession of an illegal amount of marijuana or any amount of cocaine, methamphetamine, or heroin.”).
12 are not searches under the Fourth Amendment”; (2) “[o]ur cases
addressing sniffs as searches rest on similar assumptions that dogs
are in effect reliable contraband-detection machines”; but (3) “the
issue of whether this sniff was a search is not before us”); see also
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”).
¶ 33 Although “the knowledge and understanding of law
enforcement officers and their appreciation for constitutional
intricacies are not to be judged by the standards applicable to
lawyers,” United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir.
1985), we nonetheless “presume a ‘well trained’ law enforcement
officer has ‘a reasonable knowledge of what the law [requires],’”
State v. Posa, 500 P.3d 1212, 1218-19 (Kan. Ct. App. 2021) (quoting
United States v. Leon, 468 U.S. 897, 919 n.20 (1984)); see Leon, 468
U.S. at 919 n.20 (“The objective standard . . . requires officers to
have a reasonable knowledge of what the law prohibits.”); Frank v.
State, 912 So. 2d 329, 331 (Fla. Dist. Ct. App. 2005) (“The ‘good
faith’ exception is based on an objective standard and expects
13 officers to know the law.”). To that same end, “law enforcement has
a duty to stay abreast of changes in the law.” State v. Liebl, 886
N.W.2d 512, 521 (Minn. Ct. App. 2016).
¶ 34 In Zuniga, the supreme court explicitly put the public and
police on notice that, in light of Amendment 64’s passage, the basis
for its decisions in Esparza and Mason (i.e., that a dog’s alert
exposes only contraband) no longer existed, and that, consequently,
the law was, at best, unsettled.
¶ 35 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 or Mason
as wrongly decided. Cf. Davis, 564 U.S. at 232 (concluding that the
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, McKnight II recognized that those cases
were simply not applicable in light of Amendment 64. See
McKnight II, ¶ 43.
¶ 36 In other words, the Esparza and Mason decisions did not
address the question presented here: “whether the sniff of a dog
trained to detect marijuana in addition to other substances is a
14 search under a state constitution in a state that has legalized
marijuana.” McKnight II, ¶ 47. Because, at the time of the police
action here, 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 Restrepo, ¶¶ 14-15;
Folsom, ¶ 19.
¶ 37 Consequently, we conclude that the good faith exception does
not apply to the fruits of the dog sniff and subsequent search.
¶ 38 McKnight II requires that a dog sniff be supported by probable
cause, which the trial court said was lacking. On appeal, the
People point to the circumstances that the court found satisfied the
reasonable suspicion standard — Lopez’s nervousness, his driving
an unregistered vehicle while on bond for a new narcotics case after
having just been released from prison, and his claiming to be in
Colorado Springs to do construction work despite being nicely
dressed and accompanied by a female passenger.
¶ 39 But the People do not argue that these circumstances satisfied
the probable cause standard. The most they argue is that “the trial
court found this supported reasonable suspicion rather than
probable cause. But there is room to disagree.”
15 ¶ 40 This tepid presentation does not an argument make, and it is
not our job to “make or develop a party’s argument when that party
has not endeavored to do so itself.” Beall Transp. Equip. Co. v. S.
Pac. Transp., 64 P.3d 1193, 1196 n.2 (Or. Ct. App. 2003).
¶ 41 Because the People have failed to convince us that probable
cause supported the dog sniff, as required by McKnight II, we
conclude that the trial court erred in not suppressing the evidence
found after the dog sniff.
¶ 42 If, as here, “an asserted error is of constitutional dimension,
reversal is required unless the court is convinced that the error was
harmless beyond a reasonable doubt.” Bartley v. People, 817 P.2d
1029, 1034 (Colo. 1991); see McKnight II, ¶ 60. Because the
evidence illegally discovered in the vehicle was critical to the
prosecution, we have no trouble concluding that the court’s error in
admitting it prejudiced Lopez, requiring a reversal of his
convictions.
III. Disposition
¶ 43 The judgment of conviction is reversed, and the matter is
remanded for a new trial.
JUDGE BERGER and JUDGE TOW concur.