People v. Jason Robert Lopez

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.

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¶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.

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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.

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¶ 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

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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.

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¶ 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

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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).

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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).

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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.

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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.”).

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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

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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.

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