Colorado Criminal Lawyer | Change to Dog Sniffs in Drug Cases

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drug dog sniffRecently, there has been a change to the laws concerning dog sniffs.  In the past, officers were required to have reasonable suspicion before they could allow a dog to sniff a container, package, car, or other item for drugs.  This requirement stemmed from Article II, section 7 of the Colorado Constitution (see People v. Unruh).  In essence, if the police officer did not already have reasons to believe that there were drugs in your bag, the officer could not bring a dog to sniff the bag because the dog sniff would be an unreasonable violation of your expectation of privacy.  Over the last twenty years, Colorado Criminal Lawyers have relied on Article II, Section 7 to have these illegal dog sniffs thrown out of court.

In March of 2012, the court changed the law governing dog sniffs (see People v. Esparza).  Instead of requiring reasonable suspicion, the law no longer requires reasonable suspicion before an officer can conduct a dog search.  This is an unprecedented change to the law that drastically cuts away at a person’s right to privacy in Colorado.  Ultimately, it appears that the Supreme Court wanted to make Colorado dog sniff law more similar to Federal law.  Under federal law, there is no requirement of reasonable suspicion before conducting a dog sniff.

Today, an officer can walk up to any person, with a dog, and begin sniffing their belongings.  Though this type of conduct has been allowed by the federal government for years and has come to be expected in places like Airports, it is entirely unusual for an officer to walk up to a person in a restaurant and begin sniffing their bag with a dog.

Further, the change in the law has no basis in the cases that came before it.  It appears that the Supreme Court just woke up one day and decided to start writing new law.  In doing so, the Supreme Court has entirely stepped out of the bounds of its role to determine cases within the framework of the law and has decided to take a legislative approach to its judicial role.  This is unfortunate because it chips away at the stability of the law and the ability of trial judges to accurately rely on decisions in their cases.  Though the Court noted that it desired for the Colorado Constitution to be interpreted in a similar fashion to the U.S. Constitution, on this issue, there is no basis, in the court’s prior rulings to support the notion that the Colorado Constitution should be interpreted similarly to the U.S. Constitution.  In fact, all of the prior law supports a distinction between the two Constitutions and the idea that the Colorado Constitution protects individual rights to a greater degree than the U.S. Constitution.

This change in law will have a drastic effect on drug cases and may result in innocent people being searched due to dogs falsely alerting.  Moving forward, the people of Colorado have lost a great deal of their Right to Privacy.  This is unfortunate for the State and the people who call Colorado home.

The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.

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Nathaniel has worked in criminal law on both sides of the aisle spending time working for the prosecution as well as the defense. Most recently Nathaniel has represented individuals in violent felonies and drug cases. Prior to this work, Nathaniel handled DWIs, Domestic Violence Cases, Property Crimes, and White Collar Crimes. On the prosecutorial side, Nathaniel has most notably worked in Bosnia helping to prosecute individuals who committed war crimes and crimes against humanity in the Bosnian War from 1993-1995. In particular, Nathaniel helped in the prosecution of military leaders who arranged for the organized murders and rapes of innocent civilians in various towns in Bosnia. Nathaniel is a graduate of the University of Texas School of Law, Northwestern University, and Phillips Exeter Academy. Google Profile: Nathaniel Baca