Law Office of Lori Crystal, LLC June 13, 2019

Under both federal law and Colorado law, a person has rights against unlawful searches and seizures. However, as one recent case shows, what constitutes a lawful search and seizure can be up for debate, especially when it comes to drug crimes.

In a 4-3 ruling, the Colorado Supreme Court determined that it is lawful for police to use a drug-sniffing dog to determine if there is marijuana in a vehicle. In general, to perform a search of a vehicle, there must be evidence of a crime. However, the issue became thorny in Colorado, because it is lawful to possess small amounts of marijuana.

Under this ruling, there must be evidence of a crime before a drug-sniffing dog can be used to examine the vehicle for marijuana — since doing so essentially constitutes a search. According to the majority opinion, a dog sniff intrudes on a person’s right to a reasonable expectation of privacy under the Colorado constitution. Therefore, there must be “particularized suspicion” that a crime has occurred to use a drug dog to search a person’s vehicle.

The dissent, however, opposed these limitations on the use of drug-sniffing dogs. Concerns about federal preemption were also raised. Preemption means that if state law and federal law conflict in a way that cannot be reconciled, the federal law prevails, and the state law is struck down. This is significant, because while the possession of small amounts of marijuana for recreational purposes is legal in Colorado, the possession of any amount of recreational marijuana is illegal under federal law. According to the dissent, this puts Colorado’s legalization of recreational marijuana in jeopardy.

This ruling shows how complicated state and federal search and seizure rights are. Drug charges often hinge on the legality of a search and seizure. If a search was unlawfully performed, evidence obtained therein cannot be used against the accused in court proceedings. This could be the difference between being convicted of a drug crime or being acquitted.