At face value, you might not think that a case involving a drug sniffing dog and a car search has anything to do with the 2nd Amendment, especially since there were no firearms present at the time by the car owner. But in typical fashion when dealing with the law of unintended consequences a simple car stop and search in Colorado may have repercussions throughout the country for gun owners thanks to how the Colorado Court of Appeals ruled.
In February of 2015 in Craig, Colorado Police Officer Bryan Gonzales followed a truck driven by t Kevin McKnight that was leaving a home that had been searched for drugs nearly two months earlier. Gonzales testified that he pulled the truck over because McKnight allegedly made a turn without using a turn signal. He later called in Sgt. Courtland Folks with the Moffat County Sheriff’s Office and his drug-detection dog, Kilo.
Actually, let me stop this right here and point out that the officer basically stalked a person whose only knowable “crime” was that he was coming out of a house that had been searched two months ahead of time for drugs. The officer then followed that person until he made the slightest infraction so that he could pull an end around of due process. But I digress.
Continuing on, the dog sniffed the car and found a crystal pipe used for smoking meth. Let me be clear on this point, I am not defending drug use or anything of the like, but either we are a country of laws or the government can run roughshod over criminals and innocent people alike.
McKnight was later convicted of possession of drug paraphernalia and possession of a controlled substance.
McKnight and his lawyer had fought to get the evidence tossed out because they argued it was an illegal search. It was what they based their appeal on and it was what the Colorado Court of Appeals ruled on.
The upper court ruled for McKnight and the reasoning for why they did is where the plot thickens. The appeals court said that because some amounts of marijuana are legal, and the dog could not tell officers what he was sniffing, the officers did not have enough probable cause to conduct the search.
And since the dog cannot tell what is legal and what is illegal simply by smelling then a further search is not legal.
If an officer, in this case the K-9 dog Kilo, cannot discern what is legal and illegal simply by using one sense then it goes to reason that any search that is conducted simply because of the possibility that something is illegal is a violation of the 4th Amendment.
There is the apples to apples comparison of a police dog alerting an officer to the presence of gunpowder from a car. Well, since it is legal to have guns and ammo in every state in the Union cops, according to the rationale of the Colorado Court of Appeals cannot just start searching away because they are hoping something is illegal.
To stretch this out a little more, if an officer in New York sees you have a gun, he shouldn’t be able to take it in order to check how many bullets it holds (NY gun control dictates guns cannot hold more than 10 rounds). Or in open carry states this should fight against cops who want to question you and ask for ID just because you are carrying a gun. Basically undermining the infringement of Terry stops which will one day have to be addressed by the Supreme Court again.
And in the broadest sense of the ruling, the assumption of innocence for the person subjected to the police’s attention is strengthened and any search that is conducted concerning a legal item, guns, money, in some states drugs etc. cannot be justified under the 4th Amendment.
While the ruling in Colorado does not set a mandatory precedent, it does create a persuasive precedent that other courts throughout the country may follow. Just one more bit of ammo for gun owners against the creeping infringements inherent in the gray area of search and seizures.
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