The US constitution protects citizens against unwarranted search and seizures. This means that unless police have a warrant or probable cause, they cannot search your person or vehicle for illegal substances.

However, the definition of probable cause is surprisingly complex when you start delving into it.

This is particularly true in the case of drug-sniffing dogs. Police are allowed to use these animals to alert them to the presence of illegal drugs – and if the dogs do react as if there are drugs present, this is considered probable cause for a search. However, the situation is more complicated when drug-sniffing dogs are trained to alert to marijuana, which is legal in Colorado.

How so?

Recently, a three-judge panel ruled that if a drug-sniffing dog is trained to alert to the smell of marijuana in addition to other illegal drugs, officers need more cause to search a vehicle without permission. Because marijuana is legal in the state of Colorado, an alert from a drug dog trained to detect marijuana as well as other drugs is not probable cause to conduct a search, as this alert could be due to possession of a legal substance.

This decision arose from a 2015 case in Moffat County, when a drug-sniffing dog alerted officers to a truck, which was searched and found to contain both marijuana and a glass pipe commonly used to smoke meth. Because there was no way to determine whether the dog had alerted based on marijuana or methamphetamine, the resultant search was considered unlawful.

However, marijuana possession by persons under 21 is illegal, as is driving while intoxicated. So, if the vehicle’s driver is under 21 or there is evidence that the driver is intoxicated, officers may still subject the vehicle to a drug dog sniff even if the dog is trained to detect marijuana.

This is an excellent case in point for the complexity of search and seizure cases. It also highlights the importance of knowing your rights when interacting with police.

Below we’re going to provide a rundown of how search and seizure laws work, what your rights are with the police, and how to exercise them.

When Denver Police Can Stop and Search You

Under the Fourth Amendment, law enforcement officers are not allowed to search you or your property unless:

• The agency has obtained a valid search warrant from a judge, or
• The search falls into one of the limited exceptions to the warrant requirement.

Any search conducted outside of these conditions is not legal, and therefore anything found during this search is not legally admissible as evidence in criminal proceedings.

Exceptions to Search Warrant Requirements in Colorado

As mentioned above, in some circumstances police are legally permitted to conduct a limited search without a warrant.

Officers may conduct a search under the following circumstances:

• You consent to the search voluntarily.
• The police are conducting a “protective sweep” of the area due to a lawful arrest in order to search for dangers such as a fugitive in hiding nearby.
• The search occurs after a lawful arrest, and police are searching for weapons that could be used against them, or for other evidence of criminal activity that might otherwise be destroyed before they are able to obtain a warrant.
• The police are engaging in a “stop and frisk,” which is a pat down of the outer clothing of a criminal suspect to look for weapons while the suspect is temporarily detained.
• The police have “probable cause” to believe that a vehicle contains evidence of a crime.
• The police see an incriminating item that is in plain view while conducting an otherwise lawful search. A common example would be illegal drugs plainly visible during a routine traffic stop.
• There is an emergency situation, and the search is necessary to prevent physical harm, property damage, or to locate a fleeing suspect.

How Coloradans Can Protect Their Rights

Any time you interact with the police, it is important to know your rights. Many people consent to searches under the mistaken assumption that refusing a search is unlawful.

If the police ask to search your person, home or vehicle, politely ask if they have a warrant, and if not, state that you do not consent to the search. Even if you don’t believe there is any evidence of criminal activity in your vehicle, it’s always better to be safe than sorry.

Generally speaking, it is not advisable to talk to the police without an attorney present. If you are placed under arrest, do not talk to police until you have an attorney present, as anything you say will be used against you, even if the police ask a question you’re not required to answer.

If you have already fallen victim to an illegal search and seizure, contact a skilled Denver criminal defense attorney. Your attorney can ask the court to exclude evidence found in the search – known as the “exclusionary rule.” This rule applies not only to evidence found during the search, but also to all evidence that police obtained based on the original search findings.

Bottom line? Know your rights – exercising them could save you a significant amount of trouble. Police often count on suspects not being aware of or exercising their rights.

About the Author:

Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state.  She has also been recognized for her work in domestic violence cases.